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songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party FRASER v. UNITED STATES (two cases). BARTON et al. v. SAME. Nos. 9639-9641. Circuit Court of Appeals, Sixth Circuit. Oct. 3, 1944. Writ of Certiorari Denied Feb. 26, 1945. See 65 S.Ct. 684. W. C. Rodgers, of Memphis, Tenn., for William Fraser and Mrs. William Fraser. Fred Callahan, of Memphis, Tenn. (Fred Callahan and Granville Farrar, both of Memphis, Tenn., on the brief), for P. M. Barton et al. Mary Connor Myers, of Washington, D. C, (J. Stephen Doyle, Jr., of Washington, D. C., and William McClanahan and R. G. Draper, both of Memphis, Tenn., on the brief), for the United States. Before HICKS, SIMONS, and Mc-ALLISTER, Circuit Judges. SIMONS, Circuit Judge. These appeals challenge the liability of purchasers of non-quota cotton for penalties prescribed by the Agricultural Adjustment Act of 1938, 7 U.S.C.A. § 1348, as amended by Joint Resolution P.L. No. 74, 77th Congress, 7 U.S.C.A. §§ 1330, 1340. The original controversy arose between the producers and the purchasers as to which party was required to pay the penalty, but the United States intervened, and on the ground that the purchasers had made no accounting to the producers for the avails of the cotton, that they had neither paid the producers nor the government tax and had not segregated any fund for the payment of the penalty, nor given notice of any kind to the United States of the sale and transfer of the cotton, as provided by law, sought payment of the penalty from both producers and purchasers. The court gave judgment for the government in the amount of the penalty against both, and impounded avails of the cotton discovered in possession of Mrs. Fraser through pretrial depositions of the Frasers under Rule 26, Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, by interrogatories which are alleged by them to be an invasion of the privilege resulting from their marital relation. Barton and others were owners of the Tliree-Way Land Company which, in 1941, leased some 15,000 acres, planted to cotton, on a share-crop basis. Negotiations with Fraser and Britton resulted in an agreement in the nature of an option exercised by Fraser as he secured buyers for the cotton. It is Fraser’s contention that the contract relieved him and his associate from obligation to pay the penalty because in a letter on which the contract was based, he said, “we are not interested in any government tax.” This observation is relied upon to show that the tax was to be paid by Barton. It is not to such extent unequivocal as to close the door to extrinsic proofs of the terms of the agreement. There was evidence that Fraser proposed to sell the cotton at a price sufficient to enable him to pay Barton 15% cents a pound, or an average of $7 a bale “above loan values,” and that Barton understood this to mean that it would be net to him after payment of all government claims. This understanding was confirmed in later letters between the parties, and there was testimony of trade usage that “above loan value” comprehended payment by the purchaser of government penalties. In view of the fact that Fraser’s interpretation of the agreement would have enabled him to make a profit of over $46,000, while Barton and the farmers received less than $20,000, the contracting parties could not reasonably have intended such result. In any event, the trial judge who heard the evidence, decided the issue against Fraser, and we are unable to say that his holding was clearly wrong. Barton’s suit is challenged on the ground that he is not the proper party plaintiff, because in an earlier suit upon the same cause of action in Missouri, the complaint was filed on behalf of the Three-Way Land Company, a Corporation. It appears, however, that since the Missouri case was begun the corporation has surrendered its charter, and given Barton authority to liquidate and wind up its affairs. We think the suit was properly brought by Barton in view of the circumstances. No estoppel arises out of the fact that the earlier suit counted upon a contract evidenced by a letter of April 24, while the agreement here sued upon depends upon an April 2nd letter. The court found that reference to the April 24th letter in the Missouri suit, was the result of an error in the drafting of the complaint. While evidence to support this finding is meager, the April 24th letter was in existence, and the Missouri complaint was hurriedly drawn. There being no showing of wilful misstatement, and none of prejudice, there is no estoppel. Behr v. Connecticut Mutual Life Ins. Co., C.C., 4 F. 357, 362; Broyles v. Scottish Union & Nat. Ins. Co., 16 Tenn.App. 331, 336, 64 S.W.2d 517; Southern Coal & Iron Co. v. Schwoon, 145 Tenn. 191, 239 S.W. 398. Aside from question of liability for penalties as between the parties to the contract, Fraser contends that he is not liable under the Act. He relies upon 7 U.S.C.A. § 1348, which provides, “any fanner who * * * markets cotton in excess of the * * * quota * * * shall be subject to the following penalties.” 7 U.S.C.A. § 1372, however, provides that “the penalty * * * shall be collected by the buyer” and paid “as the Secretary may by regulations prescribe. Such penalties shall be remitted to the Secretary by the person liable for the penalty, except that if any other person is liable for the collection of the penalty, such other person shall remit the penalty.” Section 1372 also provides that penalties shall be collected and paid'in such manner, at such times, and under such conditions as the Secretary may, by regulations, prescribe, and in pursuance of such authority there were promulgated “Regulations Pertaining to Cotton Marketing Quotas for the 1941-1942 Marketing Year” identified as (Cotton 507) óf which § 702 provides “the penalty in connection with the marketing of cotton by sale to any person within the United States shall be collected by the buyer at the time of sale. * * *” It is true that this regulation also recognizes an agreement between producer and buyer in reference to cotton, but this is limited to processed cotton. There must have been purpose and not inadvertence in the distinction. By § 703 of the Regulations, the penalty is to be remitted not later than 15 calendar days next succeeding the day on which the cotton was marketed by the producer. The court held both parties liable, and we agree. Fraser withheld both from Barton and the United States, the amount of the penalty, and so in effect collected it. Tennessee cases holding that no one may be made a bailee without his consent, are unimportant, for we are concerned with a Federal statute implementing a policy of national control of agricultural marketing conditions, and insofar as it is a valid exercise of the commerce power, it is paramount to state law. No question of due process inheres in holding the buyer who collects the penalty liable for its payment. When, with notice, he buys non-quota cotton, he subjects himself to the provisions of the Act and may not complain. He is under no obligation to buy. Fraser’s contention that even if liable for penalties it is only to the extent of 3‡ per pound instead of 7‡ per pound, must be rejected. Originally the Act of 1938, as amended, 7 U.S.C.A. § 1348, 52 Stat. 59, provided for a penalty on non-quota cotton of 2<¡t per pound if marketed during the first marketing year when quotas are in effect, and 3‡ per pound if marketed during any subsequent year. This provision was, however, amended by Joint Resolution No. 74, 77th Congress, captioned “Joint Resolution Relating to corn and wheat marketing quotas under the Agricultural Adjustment Act of 1938, as Amended.” Subsection 9 of the Resolution raised the penalty on non-quota -cotton for the 1941-1942 marketing year, to 7‡ per pound. No .invalidity is perceived in this section by reason of the omission from the caption of any reference to cotton. While many state constitutions require the purpose of a statute to be fully expressed in its title, and while this requirement has been construed with varying degrees of liberality by state courts, no such requirement attaches to Congressional enactments. There would seem to be no more reason for eliminating cotton from subsection 9 by invoking the doctrine “expressio unius,” than for inserting it in the caption if the doctrine ever could be invoked in a situation of this kind. Fraser’s complaint at being enjoined from transferring assets and being required to pay money disclosed in his wife’s possession, into the registry of the court pending trial and final determination, is likewise without merit except insofar as the latter may involve the question of privilege to be hereinafter discussed. It has been held, Behre v. Anchor Ins. Co., 2 Cir., 297 F. 986, that an averment that a defendant intends to transfer funds out of the jurisdiction, is insufficient to support an injunction if the defendant is solvent. Here it was alleged that Fraser was insolvent, and he admitted inability to pay the full amount of the penalty. In H. P. Hood & Sons v. United States, 1 Cir., 97 F.2d 677, the defendant who was contesting the validity of the Marketing Agreement Act, was required to pay the sums alleged to be due under the Act, into court, pending determination of the controversy. United States v. Adler’s Creamery, 2 Cir., 107 F.2d 987, is not in conflict for decision was rested upon absence of a showing that there was likelihood of irreparable injury pendente lite. In Mulford v. Smith, 307 U.S. 38, 45, 59 S.Ct. 648, 83 L.Ed. 1092, involving comparable provisions of the Act, it was noted, without criticism, that the District Court had directed payments required to be made under the law, to be paid into its registry pending determination. The proceedings below were in equity, and it would have been competent for the court to have appointed a receiver or custodian for the disputed fund to prevent its dissipation. Payment into the registry of the court adequately served a like purpose. The judgment against appellants for the penalty and for Barton on the contract must be sustained and, as will presently appear, it gained nothing from the disclosures allegedly invading the sanctity of the marital relation. The Frasers, however, seek relief beyond that involved in determining the soundness of the judgment. Its validity notwithstanding, they urge a return of the money paid into the registry of the court, and this involves consideration of a problem of some difficulty. Fraser, when examined on his pre-trial deposition, was asked what he had done with the proceeds of the Barton cotton. He undertook an explanation which accounted for a small portion of the proceeds, and when asked about the remainder, said he knew where $30,000 of it was. When pressed considering its location, he refused to answer on advice of counsel. It had been disclosed that Fraser and Mrs. Fraser both had lock-boxes in local banks, and counsel for Fraser objected on the ground that if Fraser answered the query it would violate privileged communications between himself and wife since one of the boxes was in her name. Upon the court directing Fraser to answer, he stated that Mrs. Fraser had possession and control of $27,000 in cash, a check for $2,711, and a $2,500 war bond, though he didn’t know where the money was, but that he would be glad to telephone Mrs. Fraser to come down; that he had given the money to his wife because Barton was trying to have an arbitration before the Cotton Exchange; that none of the proceeds of the cotton was in the lock-box. A subpoena was then issued under Rule 26, for Mrs. Fraser, and after she had been afforded time to confer with her husband and his counsel, she was asked if she had money resulting from the sale of the Barton cotton, and replied that she had $27,000 in currency on her person and was willing to turn the money over to the clerk of court to await final decision as to who might be entitled to it “if it is the right thing to do.” She further testified that her husband turned the money over to her at home to take care of. The court directed her to turn the funds over to the clerk of court, and she, without objection, complied. It is conceded that the funds delivered by Mrs. Fraser to the clerk, were proceeds of the Barton cotton, although upon later examination Mrs. Fraser testified that her husband had not told her where he got the money, that she was not concealing it, even though she had not deposited the funds nor put them into her safety deposit box — this without objection from Fraser. The public policy which lies at the foundation of every rule of privileged communications, is satisfied in the privilege accorded by the law to communications between husband and wife. They originate in confidence which is essential to the relation, and the relation is a proper object of encouragement by law, for the injury that would inure to it by disclosure is greater than the benefit that would result in a judicial investigation of the truth. Wigmore on Evidence, 3rd Edition, § 2332. The confidence that attaches to communications between husband and wife has for its purpose free and unrestrained privacy divested of any apprehension of compulsory disclosure. Wigmore, § 2336. All marital communications are, by implication, confidential, and a contrary intention must be made to appear by the circumstances of any given instance. Such is the general judicial attitude. While the protection generally extends only to communications, i. e., utterances and not acts, nevertheless the statute in some jurisdictions extends the privilege to transactions, or to knowledge of any fact acquired in the marital relation. Wigmore, § 2337. The Tennessee Statute undoubtedly is within this classification, though it uses the phrasing, “any matter that occurred between them by virtue of or in consequence of the marital relations.” Tennessee Code, § 9777. Tennessee decisions have generally been jealous in protecting the privilege not only with respect to words, but also to acts. Phœnix Fire & Marine Ins. Co. v. Shoemaker, 95 Tenn. 72, 31 S.W. 270. See also Young v. Hurst, Tenn.Ch.App., 48 S.W.355; Washington and Smith, Executors, v. Bedford, 78 Tenn. 243, 10 Lea 243. It has, however, been held in some jurisdictions, that where the husband is acting in furtherance of a fraud, a court of equity in the absencp of other evidence, in order to unearth the fraud and expose it in all its details, will permit both husband and wife to testify to the conversations had between them with regard to the transaction. Moeckle v. Heim, 134 Mo. 576, 36 S.W. 226; Henry v. Sneed, 99 Mo. 407, 12 S.W. 663, 17 Am.St.Rep. 580. It has also been held that a communication by a husband to his wife, of the existence of a right of third persons of which he is attempting to defraud them by a conveyance to her, cannot be regarded as privileged. Tobias v. Adams, 201 Cal. 689, 258 P. 588; Eddy v. Bosley, 34 Tex.Civ.App. 116, 78 S. W. 565. It must be conceded that no Tennessee decision announces such exceptions to the application of the privilege. Neither is there any decision which rejects such exceptions, although in Phoenix Fire & Marine Ins. Co. v. Shoemaker, supra, neither husband nor wife was a competent witness to the delivery of a deed between them, and in Young v. Hurst, supra, both were incompetent witnesses to a gift from husband to wife. In each case, however, the wife, while unable to testify to receipt from the husband, was permitted to avow her possession of the article in question. It would seem to us, therefore, upon a careful consideration of the problem that the public policy which regards and protects as confidential the private communications, or the acts which are their equivalent, between husband and wife, does not, under the law of Tennessee, necessarily extend to those communications and acts which are in furtherance of a fraud, particularly when the purpose of the fraud includes depriving the government of opportunity to collect lawfully imposed revenue or statutory penalties. So much for the law of Tennessee. The case, however, arises in a federal court of equity jurisdiction, and the problem presently discussed involves remedial rights as distinguished from substantive rights, and equitable powers which, having their source in the Constitution, were conferred upon the courts of the United States by §11 of the Judiciary Act, 1 Stat. 78, 28 U.S.C.A. § 41. So we have recently been reminded in York v. Guaranty Trust Co. of New York, 2 Cir., 143 F.2d 503, 523, that the Supreme Court in Kirby v. Lake Shore & M. S. R. Co., 120 U.S. 130, 7 S.Ct. 430, 30 L.Ed. 569, declared, “the equity jurisdiction of the courts of the United States cannot be impaired by the laws of the respective states in which they sit.” This judgment, in both of the cited cases, involved state statutes of limitation. If, however, the rationalization in the York case, supra, supported as it is by copious annotation, is sound, and the rule of the Kirby case prevails, notwithstanding Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, we must conclude that a federal equity court is not necessarily bound to apply a state statute giving added breadth to an evidentiary rule of privilege, when clearly it is inequitable to do so. Moreover, the privilege that attaches to confidential communications between husband and wife may be waived, and the waiver belongs to the communicating spouse, the addressee of the communication not being entitled to object. Wig-more, § 2340. It will be observed that Mrs. Fraser answered readily without objection, and disclosed not only possession of the money and securities, but their source. Fraser, on the other hand, claimed the privilege, but when directed to answer, complied without further protest. Had he persisted in his refusal to answer, it would, of course, have been at the hazard of being cited and punished for contempt, but in the event of punishment he would not have been without remedy and might have challenged the action of the court by petition for writ of habeas corpus, or by an appeal from the contempt order. He declined the hazard. May it thus not be said that though first invoking the privilege he ended by waiving it? We think this is a logical conclusion. If it be urged that the vindication of the privilege does not require one to subject himself to punishment for contumacy, nevertheless a similar surrender results when a defendant, subject to a civil or criminal judgment which he believes to. be erroneous, fails to appeal. It is urged upon us that there is analogy between denial of a privilege and invasion of constitutional right, and we are cited to cases arising under national and state-prohibition statutes wherein, upon an adjudication that prohibited liquors were-seized without a search warrant, the remedy has been not only to exclude them from evidence but to order their return. The-sounder rule, however, is that constitutional immunity from unreasonable search and seizure is completely vindicated by excluding the seizures from evidence at the trial without requiring that they be returned.. Voorhies v. United States, 5 Cir., 299 F. 275; Haywood v. United States, 7 Cir., 268 F. 795; United States v. O’Dowd, D.C., 273 F. 600 (opinion by the late Judge Westeuhaver); United States v. Eight Boxes, 2 Cir., 105 F.2d 896, 897. This does not, of course, apply to documents having only evidential value as in Weeks v. United States, 232 U.S. 383, 384, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas. 1915C, 1177. If, however, we are wrong in our rationalization of the effect of Fraser’s compliance as a waiver, another consideration compels us to reach the same result. The controversy below was submitted to a court of equity, and equitable remedies, by way of accounting and injunction, were sought by both plaintiff and intervenor. Assuming the order of the court compelling disclosure to have been erroneous as an invasion of privacy in communications between husband and wife, the disclosure, once made, is irrevocable. It is public property and may not be recalled. So disclosed, it reveals that Fraser retained and concealed from both Barton and the United States, the avails of the cotton, for one does not usually convert $30,000 into cash to keep such sum upon his person, or permit his wife to keep it on her person, for a lawful and legitimate purpose. The court found upon evidence that we deem substantial, that if the Frasers had not been required to disclose the whereabouts of a part of the funds, and if Mrs. Fraser had not been required to pay it into court to be there held subject to the rights and claims of the parties to the suit, Fraser would have continued to conceal and appropriate the money, and irreparable loss and damage would thus have resulted both to the plaintiffs and the intervenor. In this posture of the case, a court of equity was asked to return the money to Fraser without any undertaking by him that it would be paid to Barton or the government if either or both were adjudged entitled to receive it at the conclusion of the trial. It is futile to urge that the government should have been relegated to procedure by execution or attachment in the enforcement of a judgment. If the infirmities of the disclosure now require the return of the money to Fraser, by the same token neither plaintiff nor intervenor could have taken advantage of an erroneously compelled disclosure in collecting the judgment. In short, the Frasers now demand that they be again put in possession of funds they sought to retain and conceal. The inference is inescapable, that they will again conceal them to defeat the judgment. A court of equity will lend no aid to such enterprise. Only one other contention of Fraser merits consideration. He complains that he was compelled to testify when his phj'sical condition was such that he was not strong enough to stand the strain of examination without endangering his health, and that Mrs. Fraser was deprived of her right as a female witness to have her deposition taken at home under the provisions of § 9807 of the Tennessee Code. Mrs. Fraser raised no objection to her leaving home for the purpose of testifying, and the record discloses no untoward effect on Fraser as the result of the hearing. Finally, it is not contended on behalf of either, that testimony as to the disposition of the $30,000 was either inaccurate or confused. The judgment 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:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. SANDERS v. UNITED STATES. No. 202. Argued February 25, 1963. Decided April 29, 1963. Fred M. Vinson, Jr., by appointment of the Court, 371 U. S. 806, argued the cause and filed a brief for petitioner. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Cox, Assistant Attorney General Miller and Sidney M. Glazer. Mr. Justice Brennan delivered the opinion of the Court. We consider here the standards which should guide a federal court in deciding whether to grant a hearing on a motion of á federal prisoner under 28 U. S. C. § 2255. Under that statute, a federal.prisoner who claims that his sentence was imposed in violation of the Constitution or laws of the United States may seek relief from the sentence by filing a motion in the sentencing court stating the facts supporting his claim. “[A] prompt hearing” on the motion is required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief....” The section further provides that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” The petitioner is serving a 15-year sentence for robbery of a federally insured bank in violation of 18 U. S. C. §2113 (a). He filed two motions under § 2255. The first alleged no facts but only bare conclusions in support of his claim. The second, filed eight months after the first, alleged facts which, if true, might entitle him to relief. Both motions were denied,'without hearing, by the District Court for the' Northern District of California. On appeal from the denial of the second motion, the Court of Appeals for the Ninth Circuit affirmed. 297 F. 2d 735. We granted leave to proceed in forma pauperis and cer-tiorari. 370 U. S. 936. On January 19, 1959, petitioner was brought before the United States District Court for the Northern District of California, and was handed a copy of a proposed information charging him with the robbery. He appeared without counsel. In response to inquiries of the trial judge, petitioner stated that he. wished t<? waive assistance of counsel and to proceed by information rather than indictment; he signed a waiver of indictment, and then pleaded guilty to the charge in the information. On February 10 he was sentenced. Before sentence was pronounced, petitioner said to the judge: “If possible, your Honor, I would like to go to Springfield or.Lexington for addiction. cure. I have been using narcotics off and on for quite a while.” The judge replied that he was “willing to recommend that.” On Jánuary 4, 1960, petitioner, appearing pro se, filed • his first motion.. He alleged no facts but merely the conclusions that (1) the “Indictment” was invalid, (2) “Appellant was denied adequate assistance of Counsel as guaranteed by the Sixth Amendment,” and (3) the sentencing court had “allowed the Appellant to be intimidated and coerced into filtering [sic] a plea without Counsel, and any knowledge of the charges lodged against the Appellant.” He filed with the motion an application for a writ of habeas corpus ad testificandum requiring the. prison authorities to produce him before the court to testify in support of his motion. On February 3 the District Court denied both the motion and the application. In a memorandum accompanying the denial, the court explained that the motion, “although replete with conclusions, sets forth no facts upon which such conclusions can be founded. For this reason alone, this motion may be denied without a hearing.” Nevertheless, the court stated further that the motion “sets forth nothing but unsupported charges, which are completely refuted by the files and records of this case. Since the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, no hearing on the motion is necessary.” No appeal was taken by the petitioner from this denial. On September 8 petitioner, again appearing pro se, filed his second motion. This time he alleged that, at the time of his trial and sentence he was mentally incompetent as a result of narcotics administered to him while he was held in the Sacramento County Jail pending trial. He stated in a supporting affidavit that he had been confined in the jail from on or about January 16, 1959, to February 18, 1959; that during this period and during the period of his “trial” he had been intermittently under the influence of narcotics; and that the narcotics had been administered to him by the medical authorities in attendance at the jail because of his being a known addict. The District Court denied the motion without hearing, stating: “As there is no reason given, or appárent tó this Court, Why petitioner could not, and should hot, have raised the issue of mental incompetency at the time of his first motion, the Court will refuse, in the exercise of its statutory discretion, to entertain the present petition.” (Footnote omitted.) The court also' stated that “petitioner’s complaints are without merit in fact.” On appeal from the order denying this motion, the Court of Appeals for the Ninth Circuit affirmed. 297 F. 2d 735 (1961). The Court of Appeals said in a per curiam opinion: “Where, as here, it is ápparent from the record that at the time of filing the first motion the movant knew the facts on which the second motion is based, yet in the second motion set forth no reason why.he was previously unable-to assert the new ground and did not allege that he had previously been unaware of the significance of the relevant facts, the district court, may, in its discretion, decline to entertain the second motion.” 297 F. 2d, at 736-737. We reverse. We hold that the sentencing court should, have granted a hearing oh the second motion. I. The statute in'terms requires that a' prisoner shall be granted a hearing on a motion which alleges sufficient facts to support a claim for relief unless the motion and the files and records of the case “conclusively show” that the claim is without merit. This is the first case in which'we have been called upon to determine what significance, in deciding whether to grant a hearing, the. sentencing court should attach to. any record of proceedings on prior '.motions for relief which may be among the files and records of the case, in light of the provision that: “The sentencing court shall not be required to entertain a second or successive motion-, for similar relief on behalf of the same prisoner.” This provision has caused uncertainty in the District Courts, see Bistram v. United States, 180 F. Supp. 501 (D. C. D. N. Dak.), aff’d, 283 F. 2d 1 (C. A. 8th Cir. 1960), and has provoked a conflict between circuits: with the decision of the Court of Appeals for the Ninth Circuit in the instant case, compare, e. g., Juelick v. United States, 300 F. 2d 381 (C. A. 5th Cir. 1962); Smith v. United States, 106 U. S. App. D. C. 169, 270 F. 2d 921 (1959). We think guidelines to the proper construction of the provision are to be found in its history. At common law, the denial by a court or judge of an application for habeas corpus was not res' judicata. King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (K. B. 1801); Burdett v. Abbot, 14 East 1, 90, 104 Eng. Rep. 501, 535 (K. B. 1811); Ex parte Partington, 13 M. & W. 679, 153 Eng. Rep. 284 (Ex. 1845); Church, Habeas Corpus (1884), § 386; Ferris and Ferris, Extraordinary Legal Remedies (1926), § 55. “A person detained in custody might thus proceed from court to court until he obtained his liberty.” Cox v. Hakes, 15 A. C. 506, 527 (H. L., 1890) That this was a principle of our law of habeas corpus as well as the English was assumed to be thé case from the earliest days of federal habeas corpus jurisdiction.. Cf. Ex parte Burford, 3 Cranch 448 (Chief Justice Marshall). Since then,, it has become settled in an unbroken line of decisions. Ex parte Kaine, 3 Blatchf. 1, 5-6 (Mr. Justice Nelson in Chambers); In re Kaine, 14 How. 103; Ex parte Cuddy, 40 F. 62, 65 (Cir. Ct. S. D. Cal. 1889) (Mr. Justice Field); Frank v. Mangum, 237 U. S. 309, 334; Salinger v. Loisel, 265 U. S. 224, 230; Waley v. Johnston, 316 U. S. 101; United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260, 263, n. 4; Heflin v. United States, 358 U. S. 415, 420 (opinion of Mr. Justice Stewart) (dictum); Powell v. Sacks, 303 F. 2d 808 (C. A. 6th Cir. 1962). Indeed, only the other day we remarked upon “the familiar principle that res judicata is inapplicable in habeas proceedings.” Fay v. Noia, 372 U. S. 391, 423. It has been suggested, see Salinger v. Loisel, supra, at 230-231, that this principle derives from the fact that at common law habeas corpus judgments were not appeal-able. But its roots would seem to go deeper. Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged. If “government... [is] always [to] be accountable to the judiciary for a man’s imprisonment,” Fay v. Noia, supra, at 402, access to the courts on habeas must not be thus impeded. The inapplicability of res judicata to habeas, then, is inherent in the very role and function of the writ. A prisoner whose motion Under § 2255 is denied will often file another, sometimes many successive motions. We are aware that in consequence the question whether to grant a hearing on a successive motion can be troublesome — particularly when the- motion is prepared without the assistance of counsel and contains matter extraneous to the prisoner’s ease. But the problem is not new, and our decisions under habeas corpus have identified situations where denial without hearing is proper even though a second or successive application states a claim for relief. One such situation is that involved in Salinger v. Loisel, supra. There, a first application for habeas corpus had been denied, after hearing, by one District Court, and the denial was affirmed by the Court, of Appeals. The prisoner then filed subsequent applications, all identical to the first, in a different District Court. We indicated that the subsequent applications might properly have been denied simply on the basis that the first denial had followed a full hearing on the merits. We there announced a governing principle; while reaffirming the inapplicability of res judi-cata to habeas, we said: “each application is to be dis.-posed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought.Among the matters which may be considered, and even given controlling weight, are.... a prior refusal to discharge on a like application.” 265 U. S., at 231. The Court quoted approvingly from Mr. Justice Field’s opinion in Ex parte Cuddy, supra, at 66: “ ‘The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it.’ ” 265 U. S., at 231-232. The petitioner’s successive applications were properly denied because he sought to retry a.claim previously fully considered and decided against him. Similarly, nothing in § 2255 requires that •& sentencing court grant. a hearing on a successive motion alleging a ground for-relief already fully considered on a prior motion and decided against the prisoner. Another such situation is that which was presented in Wong Doo v. United States, 265 U. S. 239. In Wong Doo the prisoner in his first application for habeas corpus tendered two grounds in support of his position. A hearing was held but the petitioner offered no proof of his second ground, even though the return to the writ had put it in issue..Relief was denied and the denial affirmed by the Circuit Court of Appeals. Later, he filed a second application relying exclusively on the second ground. Relief was denied. We upheld the denial: “The petitioner had full opportunity to offer proof of,. [the second ground] at the hearing on the first petition; and, if he was intending to’rely on that ground, good faith required that he produce the proof then. To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of' habeas corpus. No reason for not presenting the.proof at the outset is offered. It has not been embodied in the record, but what is said of it there and in the briefs shows that it was accessible all the'time.” 265 U. S., at 241. Similarly, the prisoner who on a prior motion under' § 2255 ’ has deliberately withheld a ground for relief need not be heard if he asserts that ground in a successive-motion; his action is inequitable — an abuse of the remedy — and the court may in its discretion deny him a hearing. The interaction of these, two principles — a successive application on a ground heard and denied on a prior application, and abuse of the writ — was elaborated in Price v. Johnston, 334 U. S. 266, 287-293. The petitioner had for the first time in his fourth application alleged the knowing use of perjured testimony by the prosecution.. But the Court held that regardless of the number of prior applications, the governing principle announced in Salinger v. Loisel could not come into play because the fourth application relied on a ground not previously heard and determined. Wong Doo was distinguished on the ground that-there the proof had been “accessible at all times” to’the petitioner, which demonstrated his bad faith, 334 U. S., at 289; in Price, by contrast, for aught the record disclosed petitioner might have been justifiably ignorant of newly alleged facts or unaware of their legal significance. The case also decided an.important procedural question • with regard to abuse of remedy as justification for denial of a hearing, namely, that the burden is on the Government to plead abuse of the writ. “[I]f the Government chooses hot to deny the allegation [of knowing use of perjured testimony] or to question its sufficiency and de-' sires instead to claim that the prisoner has abused the writ of habeas corpus, it rests with the Government to make, that claim.with clarity and particularity in its return to. the order to show cause.” Id., at 292. The Court reasoned that it would be unfair to- compel the habeas applicant, typically unlearned in the law and unable to procure legal assistance in drafting his application, to plead an elaborate negative. Very shortly after the Price decision, as part of the 1948 revision of the Judicial Code, the Court’s statement in Salinger of the governing principle in the treatment of a successive application was given statutory form. 28 U. S. C. § 2244. There are several things to be observed about this codification. First, it plainly was not intended to change, the law as -judicially evolved. ■ Not only does the Reviser’s Note disclaim-any sudh' intention, but language in the.original bill which would have injected res judicata into federal'habeas corpus was deliberately eliminated from the Act as finally passed. See S. Rep. No. 1559, 80th Cong., 2d Sess. 9Moore, Commentary on the United States Judicial Code (1949), 436-438. Moreover, if. construed, to. derogate from the traditional liberality of the writ of habeas corpus, see pp. 7-8, supra, § 2244 might raise serious constitutional questions. Cf. Fay v. Noia, supra, at 406. Second, even with respect to successive applications on which hearings may be denied because the ground asserted was previously heard and decided, as in Salinger, § 2244 is faithful to the Court’s phrasing of the principle in' Salinger, and does.not enact a rigid rule.' The judge is permitted, not compelled, to decline to entertain such an application, and.then only if he “is satisfied that the ends of justice will not be served” by inquiring into the merits. Third, § 2244 is addressed only to the problem of successive applications based on grounds previously heard and decided. It does.not cover a second or successive application containing a ground “not theretofore presented and determined,” and so does not touch the problem of abuse of the writ. In Wong Doo, petitioner’s second ground had been presented.but not determined on his prior application; § 2244 would be inapplicable in such a situation. On the other hand, § 2244 was obviously not intended to- foreclose judicial application of the abuse-of-writ principle as developed in Wong Doo and Price. Section 2255 of the Judicial Code, under which the instant case arises, is of course also a product of the 1948 revision — enacted, in the language of the Reviser’s Note, to provide “an expeditious remedy for correcting erroneous sentences [of federal prisoners] without resort to habeas corpus.” It will be noted that although § 2255 contains a parallel provision to § 2244, there is an apparent verbal discrepancy. Undér § 2255, it is enough, in order to invoke the court’s discretion to decline to reach the merits, that the prisoner is seeking “similar relief” for the second time. This language might seem to empower the sentencing court to apply res judicata virtually at will,, since even if a second motion is predicated on a completely different ground from the first, the prisoner ordinarily will be seeking the same “relief.” Note, 59 Yale L. J. 1183, 1188, n. 24 (1950). But the language cannot be taken literally. In United States v. Hayman, 342 U. S. 205, the prisoner vigorously contended that § 2255 was an unconstitutional suspension of the writ of habeas corpus. The Court avoided the constitutional question by holding that § 2255 was as broad as habeas corpus: “This review of the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.” 342 U. S., at 219. (Emphasis supplied.) Accord, United States v. Morgan, 346 U. S. 502, 511; Smith v. United States, 88 U. S. App. D. C. 80, 187 F. 2d 192 (1950); Heflin v. United States, 358. U. S. 415, 421 (opinion of Mr. Justice Stewart). As we said just last Term, “it conclusively appears from the historic context in which § 2265 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined.” Hill v. United States, 368 U. S. 424, 427. • Plainly, were the prisoner invoking § 2255 faced with the bar of res judicata, he would not enjoy the “same rights” as the habeas corpus 'applicant,, or “a remedy exactly commensurate with” habeas. Indeed, if he were subject to any substantial procedural hurdles which made his remedy under § 2255 less swift and imperative than féderal habeas corpus, the gravest constitutional doubts would, be engendered, as the Court in Hayman implicitly recognized. And cf. pp. 11-12, supra. We therefore hold that the “similar relief” provision of § 2255. is to be deemed the material équívalent of § 2244. See Smith v. United States, 106 U. S. App. D. C. 169, 173, 270 F. 2d 921, 925 (1959); Longsdorf, The Federal Habeas Corpus Acts Original and Amended, 13 F. R. D. 407, 424 (1953). We are helped to this conclusion by two further considerations. . First, there is no indication in the legislative history to the 1948 revision of the Judicial Code that Congress intended to treat the problem of successive applications differently under habeas corpus- than under the new motion procedure; and it is difficult to see what logical or practical basis there could be for such' a distinction. Second,’even assuming the constitutionality of incorporating res judicata in § 2255, such a provision wofild •probably prove to be completely ineffectual, in light of the further provision in the section that habeas corpus remains available to a federal prisoner if the remedy by motion is “inadequate or ineffective.”. A prisoner barred by res judicata would seem as a consequence to have an “inadequate or ineffective” remedy under § 2255 and thus be entitled to proceed in. federal habeas corpus — where, of course, § 2244 applies. See Smith v. United States, sura, 106 U. S. App. D. C., at 174, 270 F. 2d, at 926. II. We think the judicial and statutory evolution of the principles governing successive applications for federal habeas corpus and motions under § 2255 has reached the point at which the formulation of basic rules to guide the. lower federal courts is both feasible and desirable. Compare Townsend v. Sain, 372 U. S. 293, 310. Since the motion procedure is the substantial.equivalent of federal habeas corpus, we see no need to differentiate the two for present- purposes. It should be noted that these rules are not operative in cases where the second or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. 28 U. S. C. §§ 2243, 2255. In such a case the application should be denied without a hearing. A.'Successive Motions on Grounds Previously Heard and Determined. Controlling weight may be given to denial'of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant' on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. (1) By “ground,” we mean simply a sufficient: legal-basis for granting the relief sought by the applicant. For' example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, cf. Wilson v. Cook, 327 U. S. 474, 481; Dewey v. Des Moines, 173 U. S. 193, 198, or be couched in different language, United States v. Jones, 194 F. Supp. 421 (D. C. D. Kan. 1961) (dictum), aff'd mem., 297 F. 2d 835 (C. A. 10th Cir.1962), or vary in immaterial respects, Stilwell v. United States Marshals, 192 F. 2d 853 (C. A. 4th Cir. 1951) (per curiam). Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. (2) The prior denial must have rested on. an adjudication of the merits of the ground presented in the subsequent application. See Hobbs v. Pepersack, 301 F. 2d 875 (C. A. 4th Cir. 1962). This means that if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held. See Motley v. United States, 230 F. 2d 110 (C. A. 5th Cir. 1956); Hallowell v. United States, 197 F. 2d 926 (C. A. 5th Cir. 1952). (3) Even if the same ground was rejected on the mérits on a prior application, it is open to the applicant to show that' the ends of. justice would be served by permitting the redetermination of the ground. If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a full and fair evidentiary hearing recently in Townsend v. Sain, supra, and that discussion need not be repeated.here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for haying failed to raise a crucial point or argument in the prior.application. Two further points should be noted. First, the foregoing enumeration is not intended to be exhaustive; the test is “the ends of justice” and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground. B. The Successive Application Claimed to be an Abuse op Remedy. No matter ho.w many prior applications for federal collateral relief a prisoner has made, the principle elaborated, in Subpart A, supra, cannot' apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. See p. 11, supra. To say that it is open to the respondent to show that a second or successive application is abusive is simply to recognize that “habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U. S. 561, 573 (dissenting opinion). Among them is the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.'Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable." Fay v. Noia, supra, at 438. Thus, for • example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay. We need not pause over the test governing whether a second or successive application may be deemed an abuse by the prisoner of the writ or motion remedy. The Court’s recent opinions in Fay v. Noia, supra, at 438-440, and Townsend v. Sain, supra, at 317, deal at length with the circumstances under which a prisoner may be foreclosed from federal collateral relief. The principles developed in those decisions govern equally here. A final qualification, applicable to both A and B of the foregoing discussion, is in order. Thé principles governing both justifications for • denial • of a hearing, on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power — and, if the ends of justice'demand, the dutv — to reach the merits. Cf. Townsend v. Sain, supra, at 312, 318. We are confident that this power will bfe soundly-applied. III. Application of the foregoing principles to the instant case presents no difficulties. Petitioner’s first motion under § 2255 was denied because it stated only bald legal conclusions with no supporting factual allegations. The court had the power to deny the motion on this ground, see Wilkins v. United States, 103 U. S. App. D. C. 322, 258 F. 2d 416 (C. A. D. C. Cir. 1958), although the better course might have been to direct petitioner to amend his motion, see Stephens v. United States, 246 F. 2d 607 (C. A. 10th Cir. 1957) (per curiam). But •the denial, thus based, was not on the merits. It was merely a ruling that petitioner’s pleading was deficient; To be sure, the district judge stated, in a footnote to his memorandum: “The Court has reviewed the entire file... which includes the previous proceeding, and a transcript of the proceedings at the time petitioner entered his plea, and... is of the view that petitioner’s complaints are without merit in fact.” But the “files and records of the ease,” including the transcript, could not.“conclusively show” that the claim alleged in the second motion entitled the petitioner to no relief. The crucial allegation of the second motion was that petitioner’s alleged mental incompetency was the result of administration of narcotic drugs during the period petitioner was held-in the Sacramento County Jail pending trial in the instant case. However regular the proceeding's at which he signed a waiver of indictment, declined assistance' of- counsel, and pleaded guilty might appear. from the transcript, it still might be -the case that petitioner did not make ah intelligent and understanding waiver of his constitutional rights. See Machibroda v. United States, 368 U. S. 487; Moore v. Michigan, 355 U. S. 155; Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116; Taylor v. United States, 193 F. 2d 411 (C. A. 10th Cir. 1952). Cf. Von Moltke v. Gillies, 332 U. S. 708. For the facts on which petitioner’s claim in his second application is predicated are outside the record. This is so even though the judge who passed on the two motions was the same judge who presided at the hearing at which petitioner made the waivers, and the later hearing at which he was sentenced. Whether or not petitioner was under the influence of narcotics would not necessarily have been apparent to the trial judge. Petitioner appeared before him without counsel and but briefly. That the judge may have thought that he acted with- intelligence and understanding in responding to.the judge’s inquiries cannot “conclusively show,” as the statute requires, that there is no merit in his present claim. Cf. Machibroda v. United States, supra, at 495. If anything, his request before sentence that the judge send him to a hospital “for addiction cure” cuts the other way. Moreover, we are' advised in the Government’s brief that the probation officer’s report made to the judge before sentence (the report is not part of the record in this Court) disclosed that petitioner received medical treatment for withdrawal symptoms while he was in jail-prior to sentencing. On remand, a hearing will be required. This is not to say, however, that it will automatically become necessary to produce petitioner at the hearing to enable him to testify. Not every colorable allegation entitles a federal prisoner to a trip to the sentencing court. Congress,' recognizing- the administrative burden involved in the transportation of prisoners to and from a hearing in the sentencing court, provided in § 2255 that the application may be entertained and determined “without requiring the production of the prisoner at the hearing.” This does not mean that a prisoner can be prevented from testifying in support of a substantial claim where his testimony would be material. However, we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing. In this connection, the sentencing court might find it useful to appoint counsel to represent the applicant. Cf. Coppedge v. United States, 369 U. S. 438, 446. Also, it will be open to the respondent to attempt to show that petitioner’s failure to claim mental incompetency in his first motion was an abuse of the motion remedy, within the principles of Wong Doo and Price v. Johnston, dis-entitling him to a hearing on the merits. We leave to the District Court, in its sound discretion, the question whether the issue of abuse of the motion remedy, if advanced by respondent, or the issue on the merits, can under the circumstances be tried without having the prisoner present. As we said only last Term: “What has been said is not to imply that a movant [under § 2255] must always be allowed'to appear in a district court for a full hearing if the record does not conclusively and' expressly belie his claim, no matter how vague, conclusory, or palp Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_district	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". PRESTON et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND et al. No. 7494. Circuit Court of Appeals, Sixth Circuit. June 9, 1938. William L. Frierson, of Chattanooga, Tenn. (W. D. Moon, William L. Frierson, Cantrell, Meacham & Moon, and Williams & Frierson, all of Chattanooga, Tenn., on the brief), for appellants. Vaughn Miller, of Chattanooga, Tenn., (Vaughn Miller, Miller, Miller & Martin, and Floyd' Estill, all of Chattanooga, Tenn., on the brief), for appellees. Before HICKS, ALLEN, and HAMILTON, Circuit Judges. ALLEN, Circuit Judge. Appeal from a decree against Charles E. Watson, a former county court clerk of Hamilton County, Tennessee, and the individual sureties on his bond. Two of the sureties obtained a severance from the other surety, and appealed. Watson has not appealed, and a motion to dismiss the appeal has been filed upon the ground that he was not joined in the appeal nor detached by summons and severance. Appellants assert that Watson has no interest in their controversy on appeal, and that the motion must be denied upon the authority of Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340, which held that when the interest of a defendant is separate from that of other defendants, he may appeal without them. We think the Winters Case is clearly distinguishable from that presented here. There the non-appealing defendants had failed to answer and a judgment pro confesso had been taken against them, so that they were absolutely barred and precluded from questioning the correctness of the decree, unless manifest error appeared. But here Watson is not precluded from questioning the correctness of the decree, herein and the liability of the sureties is necessarily involved with and grows out of the liability of Watson, the principal on the bond. Appellants in effect contend that the-question of their liability is a matter to be determined apart from Watson’s liability,, and that hence neither joinder nor severance of Watson is necessary in this appeal. But the decree holds Watson and his sureties jointly liable. This court cannot undertake to explore the record to ascertain what issues-were relied on in the court below. It must accept the judgment as entered. Hartford. Accident & Indemnity Co. v. Bunn, 285 U. S. 169, 52 S.Ct. 354, 76 L.Ed. 685. Since the judgment is joint in form, and no reason appears upon its face why both Watson- and the sureties might not appeal, it follows either that Watson should have joined in. the appeal or that there should have been a summons and severance in order to detach Watson from his right of appeal. Humes v. Third National Bank, 5 Cir., 54 F. 917; H. E. Wolfe Construction Co. v. Fersner, 4 Cir., 58 F.2d 27; Holbrook, Cabot & Daly Contracting Co. v. Menard, 2 Cir., 145 F. 498. Cf. City of Detroit v. Guaranty Trust Co. of N. Y., 6 Cir., 168 F, 608; Oakland County, Mich., v. Hazlett, 6 Cir., 87 F.2d 795. The motion is sustained; and the appeal is dismissed'. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
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. GILES et al. v. MARYLAND. No. 27. Argued October 12, 1966. Decided February 20, 1967. Joseph Forer argued the cause for petitioners. With him on the briefs was Hal Witt. Donald Needle, Assistant Attorney General of Maryland, and Robert C. Murphy, Deputy Attorney General, argued the cause for respondent. With them on the brief was Thomas B. Finan, Attorney General. Mr. Justice Brennan announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice Douglas join. In December 1961, petitioners, who are brothers, were convicted of rape of a 16-year-old girl after trial by jury in the Circuit Court for Montgomery County, Maryland. In May 1964, petitioners brought this proceeding under Maryland’s Post-Conviction Procedure Act, Md. Ann. Code Art. 27, § 645Á (1966 Supp.). Their petition alleged that the prosecution denied them due process of law in violation of the Fourteenth Amendment by suppressing evidence favorable to them, and by the knowing use of perjured testimony against, them. An evidentiary hearing was had before Montgomery Circuit Judge Moorman who, in an unreported opinion, ruled that the proofs did not sustain the allegation of bad faith or knowing use of perjured testimony by the prosecution, but did establish the suppression of evidence which, although not in bad faith, constituted a denial of due process. He therefore ordered a new trial. The Court of Appeals of Maryland, sitting en banc, reversed, two judges dissenting. State v. Giles, 239 Md. 458, 212 A. 2d 101. We granted certiorari. 383 U. S. 941. We would vacate the judgment of the Maryland Court of Appeals and remand to that court for further proceedings. The rape allegedly occurred about midnight, July 20, 1961, near Rocky Gorge, a swimming and fishing spot on the Patuxent River, in a secluded, wooded area of Montgomery County. The petitioners swam and fished there from early evening with Joseph Johnson and John Bowie. The prosecutrix came there by automobile shortly before midnight with her date, Stewart Foster, and two other young men. Their car ran out of gasoline near Bowie’s parked car. The girl and Foster remained in the car while the other young men went for gasoline. The girl and Foster were the State’s principal witnesses. They testified that they had been sitting in the back seat of the car for some 15 minutes after the two young men left when a noise near Bowie’s car attracted their attention. They saw petitioners and their companions loading something into Bowie’s car. Bowie drove away and petitioners and Johnson approached the stranded car. Foster rolled up tbe windows and locked the doors. The girl and Foster testified that the three demanded his money and his girl and smashed the car windows with rocks to open the car doors. Foster unlocked the door on his side and told the girl to get out her side and run while he held off the three. Foster was knocked unconscious when he left the car. The girl ran into the woods followed by John Giles who caught up with her when she tripped and fell. Petitioner James Giles and Johnson joined them a few minutes later. She testified that, when one of the trio attempted to remove her clothes, she disrobed herself below the waist and submitted to all three youths without resistance because of fear. Both petitioners testified in their own defense. Their version of the events was that the three young men approached the car and .asked Foster for a cigarette, that Foster responded with epithets and reached down as if to pick up a gun or other weapon, and that they broke the windows to prevent his getting it. They said that they did not know it was a girl who fled into the woods. Petitioner John Giles testified that when he caught up with her, she offered to submit to him if he would help her escape from the others but that he declined. Petitioner James Giles testified that when he and Johnson joined the couple, the girl told the three that she had had relations with 16 or 17 boys that week and two or three more wouldn’t make any difference, that she disrobed herself and invited all three of them to have relations with her, ahd that he and Johnson, but not petitioner John Giles, had relations with her. Both petitioners testified that the girl said that if they were caught in the woods she would have to say she had been raped because "she was on a year’s probation” and “was in trouble.” The credibility of the witnesses was thus important to the outcome of the case. The Court of Appeals recognized this in affirming the convictions on direct review: “There was some evidence tending to indicate consent on the part of the prosecuting witness, which, if believed by the trier of facts, would have been a complete defense to the charge of rape.” Giles v. State, 229 Md., at 381, 183 A. 2d, at 364. Credibility was also critical on the issue whether, in any event, petitioner John Giles had relations with her, as she testified, or had not, as the petitioners testified. The evidence allegedly suppressed consisted first, of the fact that in a- proceeding pending on June 20 in the Juvenile Court for Prince George’s County, a caseworker had recommended probation for the girl because she was beyond parental control. Also allegedly suppressed were the facts concerning an occurrence in Prince George’s County at a party on the' night of August 26, 1961, five weeks after the alleged rape, and over three months before the trial. The girl had sexual relations with two men at the party, and later that night took an overdose of pills and was hospitalized in a psychiatric ward of Prince George’s General Hospital for nine days as an attempted suicide. She told a friend who visited her at the hospital that the two men had raped her. The friend told her parents who reported this to Montgomery County Police Lieutenant Whalen, head of the investigation for the State’s Attorney into the charge against petitioners. Lieutenant Whalen advised the mother that he had no jurisdiction of Prince George’s County offenses, after which the girl’s father filed a formal charge of rape against the two men with the Prince George’s County authorities. A Prince George’s County police officer, Sergeant Wheeler, interviewed the girl at the hospital. She refused to say she had. been raped. She told the officer she had previously had relations with one of the men and also that in the previous two years she had had sexual relations with numerous boys and men, some of whom she did not know. Finally, the prosecution allegedly suppressed facts concerning a hearing conducted in.the Montgomery County Juvenile Court on September 5, 1961, apparently the day after the girl’s release from her nine-day confinement in the psychiatric ward at Prince George’s General Hospital, and three months before the trial. The hearing resulted in the commitment of the girl to the Montrose School for Girls where she remained for some time. Lieutenant Whalen testified that he had arranged this hearing with the Montgomery County Juvenile Court authorities, although the girl was a resident of Prince George’s County. He testified that the girl’s mother had complained to him that “the boys in Prince George’s County were harassing the girl, driving back and forth past the house all hours,” and that he arranged the .proceeding “to place the girl in some place for protective custody.” The Montgomery Juvenile Court record discloses, however, that the hearing also inquired into the necessity for the girl’s confinement as a juvenile “out of parental control and living in circumstances endangering her well-being.” The girl testified at the hearing that she had taken pills because she felt that “she wanted to die and there was nothing to live for.” 0 The petitioners’ contention was that all of this evidence tended to support their testimony and discredit that of the girl and Foster and might, therefore, have produced an acquittal or, at least, a reduction of penalty. They also argued that knowledge of it by the defense would have provided valuable leads to evidence supporting a conclusion that the girl testified falsely in denying that she consented to relations. The petitioners were represented at the trial by appointed counsel. He testified at the post-conviction proceeding that he knew nothing before the trial of the incidents of August 26, the girl's suicide attempt, her confinement in the hospital, the psychiatrist’s diagnosis of her mental illness, or of her commitment to the Montrose School for Girls. He testified that he had tried, before August 26, to interview the girl at her home but that her mother told him “she talked to Lt. Whalen and he told her not to discuss the case with us.” He also testified, that, based on petitioners’ story to him that the girl had told them she was on probation, he inquired of the Juvenile Courts of both Prince George’s County and Montgomery County whether there were any proceedings in those courts concerning the girl and was told records of such proceedings were not released. Judge Moorman found “that the State withheld' from the defense and suppressed both the evidence concerning 'the second rape complaint of the prosecutrix and the evidence relative to her alleged attempted suicide and emotional disturbance.” He ordered a new trial, despite the absence of a pretrial request by defense counsel for disclosure of the evidence suppressed. See Brady v. Maryland, 373 U. S. 83, 87. The Court of Appeals read Judge Moorman’s opinion to hold that nondisclosure of evidence by the prosecution denies the accused due process if the evidence could reasonably be considered admissible and useful to the defense. . The Court of Appeals viewed that formulation to be incomplete, holding that “for the nondisclosure of evidence to amount to a denial of due process it must be such as is material and capable of clearing or tending to clear the accused of guilt or of substantially affecting the punishment to be imposed in addition .to being such as could reasonably be considered admissible and useful to the defense.” 239 Md., at 469-470, 212 A. 2d, at 108. The court found the evidence allegedly suppressed did not meet that test and held that in any event “the failure of the prosecution to disclose the information relating to the alleged rape of August 26th and the subsequent suicidal attempt was not prejudicial to . . . [petitioners] and did not therefore warrant the granting of a new trial on the basis of the denial of due process.” 239 Md., at 471, 212 A. 2d, at 109. The facts found by Judge Moorman do not include elements present in. earlier decisions which determined that the suppression of evidence constituted the denial of due process of law. See Mooney v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213; Alcorta v. Texas, 355 U. S. 28; Napue v. Illinois, 360 U. S. 264; Miller v. Pate, ante, p. 1; compare United States ex rel. Almeida v. Baldi, 195 F. 2d 815; United States ex rel. Thompson v. Dye, 221 F. 2d 763; Barbee v. Warden, 331 F. 2d 842. Thus the case presents the broad questions whether the prosecution’s constitutional duty to disclose extends to all evidence admissible and useful to the defense, and the degree of prejudice which must be shown to make necessary a new trial. We find, however, that it 'is unnecessary, and therefore inappropriate, to examine those questions. In Napue v. Illinois, supra, 360 U. S., at 269, we held that a conviction must fall under the Fourteenth Amendment when, the prosecution “although not soliciting false evidence, allows it to go uncorrected when it appears,” even though the testimony may be relevant only to the credibility of a witness. We now have evidence before us, which neither Judge Moor-man nor the Court of Appeals considered, which in our view justifies a remand to the Court of Appeals for its consideration whether that court should order an inquiry to determine whether such a situation arose at petitioners’ trial. The evidence consists of two police - reports, not part of the record, which came to our attention when the State at our request supplied the material considered by the trial judge in imposing sentence. On the morning after the alleged rape, July 21, 1961, Montgomery County police officers, including Lieutenant. Whalen and Detective Collins, conducted interviews with the girl and Foster. The interviews were written up in one of the police reports.- In an effort to prove the allegations of the petition, defense counsel moved during the post-conviction proceedings that Lieutenant Whalen be directed to produce the report for inspection. -The motion was denied; Judge Moorman ruled the report was a police “work-product” and therefore not producible under Maryland’s Rules of Procedure. There can be little doubt that the defense might have made effective use of the report at -the trial or in obtaining further evidence. In the first place, the report attributes statements to the girl and Poster that appear inconsistent with their trial testimony. The report quotes • both as stating they were engaged in sexual relations when they were distracted by the noise at Bowie’s car, and that the girl dressed before petitioners and Johnson approached. They testified at trial, however, that they were merely “sitting” in the back seat of the car from the time their companions left until their attention was drawn to the presence of the four men at Bowie’s car, and Foster buttressed this testimony on cross-examination by answering “No” to the question whether he “didn’t take her out there to have sexual relations with her, yourself . . . ?” Finally, neither Lieutenant Whalen nor Detective Collins mentioned, in their summaries at trial of what each person involved in the incident had told them, the fact that the girl and Foster had stated they were engaged in sexual relations when they heard the three men. The testimony of the girl and Foster is open to the construction that these key witnesses deliberately concealed from the judge, jury, and defense counsel evidence of the girl’s promiscuity. While under the law of Maryland specific acts of misconduct are inadmissible to impeach a witness’ credibility, Rau v. State, 133 Md. 613, 105 A. 867, and specific acts of intercourse are inadmissible to establish the prosecutrix’ consent, Humphreys v. State, 227 Md. 115, 175 A. 2d 777, prior inconsistent statements and evidence of general reputation for un-chastity are admissible to impeach a witness’ credibility, see Giles v. State, 229 Md. 370, 183 A. 2d 359. And to the extent credibility could have been effectively attacked in this case, resolution of the issue, of consent necessarily would have been affected since it turned wholly on credibility. >The report could also have been used in connection with an issue which has been in this case from its inception. At the original trial, counsel sought in numerous ways to establish that John Giles had not had intercourse with the victim. At the trial the girl said all three had raped her. She admitted, however, that she had testified at the preliminary hearing and had told the police immediately after being attacked that only two of the three had intercourse with her. Detective Collins testified, on the other hand, that he “questioned the. girl at the station and she said all three of the boys had intercourse with her.” With specific reference to John Giles, Collins stated that the girl “was asked if she knew anybody in this line-up and she walked over and pointed to the defendant, John Giles, and stated to us, in his presence, that he was the first . . . that had intercourse with her . . . .” Lieutenant Whalen denied that the girl had told him “that only two of these boys had intercourse with her on that evening . . . .” Counsel at the post-conviction proceedings continued to attempt to prove John Giles was innocent of rape. He introduced newspaper articles from the Washington Evening Star and the Washington Post attributing to Lieutenant Whalen a story that the girl had said only two men had raped her. When Whalen said these stories were incorrect, counsel asked: “would your interview report of this interview show what . . . [she] said about the number of men who attacked her?” Whalen answered that it would. Counsel thereupon moved for the production of the report, but the court refused to allow him to see it because of the work-product rule. Counsel also asked the girl how many men she originally claimed had raped her and, unlike her testimony at trial, she said she had told the police all three had raped her. In contrast to much of this testimony the police report states that, both when interviewed and at a police lineup later that day, the girl identified petitioner John Giles not as the first to have intercourse with her, as Detective Collins testified, but as “the one that tried to have intercourse with her but was unable to do so,” “the man that tried to rape her . . . .” The contents of the report thus go, not only to the credibility of the State’s witnesses, but also to the issue at trial whether John Giles had raped the girl. Yet nothing appears in the trial transcript to show what, if any, action was taken by the prosecution to correct or explain the inconsistencies between- the testimony of the state witnesses and the report. Only the most strained reading of the materials before us can explain away the questions raised by the report without the aid of further inquiry. A second report, filed by Sergeant Duvall who was first at the scene of the incident, far from proves that John Giles penetrated the girl. His report recites that the girl “stated that two of the . . . males had entered her and that the third had tried but gave up when he saw lights coming.” While this statement would seem to indicate that John Giles, who was the first to attempt intercourse, penetrated the girl, it must be read in light of the fact that Duvall’s report is a two-page, third-person summary, representing what had transpired during the tense and hectic moments immediately after the incident, when the girl was nearly hysterical according to police testimony. The other report, .in contrast, is 22 pages long, was put together over at least a three-day period, and contains extensive quotations of the girl’s story taken down in the relative calm of the police station after the girl had been treated and- fed, including her reaction in personally identifying John Giles as the. one who failed to have intercourse. Moreover, Duvall’s report does state that the girl told him that only two of the men entered her, and therefore provides no explanation for the officers’ testimony that she had said all three had entered her. In fact, far from explaining the police testimony, the report raises a serious question as to the accuracy of Sergeant Duvall’s testimony at the original trial that he never discussed with the girl the number of boys who had had intercourse with her. The State attempted in the post-conviction proceedings to explain the girl’s inconsistent statement at the preliminary hearing by contending that she was unaware of the difference between the meaning of intercourse and emission, which caused her to testify at first that only two of the men had had intercourse with her. The state witness who propounded this , theory did not offer it at the original trial, in which he participated, although the girl’s explanation then was that she was confused about the names of the defendants, not about the difference between intercourse and emission. And the report reveals no confusion.on the latter point. She spoke there of intercourse as a “process,” and at one point stated that the second of the youths “had intercourse for about, ten minutes and reached a climax.” She said of John Giles, not that he failed to reach a climax, but, that he failed to “insert” because he “could not get” an erection. Of course it is possible that she was confused despite this evidence, and that John Giles achieved penetration. But it is not our place to decide these issues, either for or against petitioners; we need only determine that the evidence raises an issue of sufficient substance to justify remanding this case for reconsideration rather than deciding the broader constitutional question. Original trial counsel testified at the post-conviction proceeding that he had seen the prosecution’s file before trial, including the police reports. Since the reports were not produced, it is pure speculation to conclude that trial counsel had in fact seen the reports now before us. And if it were proper to resolve this question against petitioners, the Court of Appeals might nevertheless regard an inquiry to be in order to ascertain trial counsel’s reasons for not making use of the reports in support of the defense he was directing on behalf of petitioners. Finally, the determination of these questions against petitioners would still leave open the question whether the Court of Appeals might regard the situation as one in which the prosecution was under a duty to disclose the discrepancies to the trial judge; the court stated in its opinion that, where there is doubt as to what should be disclosed, “the trial court should decide whether or not a duty to disclose exists.” 239 Md., at 471, 212 A. 2d, at 109. In relying upon material not part of the record as a reason for remand, we follow our practice of noticing supervening matter in order to avoid deciding constitutional questions by allowing state courts to take action which might dispose of the cáse. See for example, Patterson v. Alabama, 294 U. S. 600; Bell v. Maryland, 378 U. S. 226. We follow-this practice under varying circumstances, but the principle behind it has always been the same. This Court has “discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under- our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.” Ex parte Royall, 117 U. S. 241, 251. It is not for us to direct what the Maryland courts will do in this case. The Court of Appeals may, for all we know, determine that the additional evidence demonstrates prejudice to the degree necessary under its previously applied standard to warrant a new trial. It may remand for a hearing free of the “work product” rule. It may reaffirm its judgment of reversal. Although relief may ultimately be denied, affording the state courts the opportunity to decide in the first instance is a course consistent with comity, cf. 28 U. S. C. § 2254, and a full and fair hearing in the state courts would make unnecessary further evidentiary proceedings in the federal courts. See Townsend v. Sain, 372 U. S. 293. We would remand because of our conclusion that the policé’reports, considered in the context of the record before us, raise questions sufficient to justify avoiding decision of the broad constitutional issues presented by affording the opportunity to the Maryland Court of Appeals to decide whether a further hearing should be directed. See Henry v. Mississippi, 379 U. S. 443. The truism that our federal system entrusts the States with primary responsibility in the criminal area means more than merely “hands- off.” The States are bound by the Constitution’s relevant commands but they are not limited by them. We therefore should not operate upon the assumption — especially inappropriate in Maryland’s case in light of its demonstrated concern to afford post-conviction relief paralleling that which may be afforded by federal courts in habeas corpus proceedings— that state courts would not be concerned to reconsider a case in light of evidence such as we have here, particu,larly where the result may avoid unnecessary constitutional adjudication and minimize federal-state tensions. We would therefore vacate' the judgment of the Court of Appeals and remand to that court for further proceedings. Petitioners had previously appealed unsuccessfully from the convictions, Giles v. State, 229 Md. 370, 183 A. 2d 359, appeal dismissed, 372 U. S. 767, and from the denial of a new trial, Giles v. State, 231 Md. 387, 190 A. 2d 627. Johnson was tried and convieted of rape of the girl at a separate trial in the Circuit Court for Anne Arundel County. His application for post-conviction relief is being held in abeyance pending disposition of this case. “With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character.” Hazel v. State, 221 Md. 464, 469, 157 A. 2d 922, 925. If the jury which finds an accused guilty of rape adds to its verdict the words “without capital punishment,” the court may not impose the death penalty but only imprisonment for not exceeding 20 years in the penitentiary. Md. Ann. Code Art. 27, §463 (1957). If the jury does not add such words to its verdiot, the court, at its discretion; may impose the death sentence, a life sentence, or a sentence in the penitentiary for not less than 18 months nor more, than 21 years. Md. Ann. Code Art. 27, §461 (1957). The jury did not add to its verdict the words “without capital punishment,” and the trial judge imposed death sentences. Governor Tawes subsequently commuted the sentences to life imprisonment. Other counsel are representing them in the post-conviction proceedings. The dissenting judges in the Court of Appeals were of the view that the extensive evidence of the girl’s reputation for unchastity presented in the post-conviction record, added to the evidence of her emotional instability, might support a defense that she suffered from an uncontrollable weakness that petitioners might reasonably have mistaken for consent. The majority apparently were also of the view that under some circumstances suppression of evidence pertaining to a witness’ mental condition might amount to a deprivation of due process. If this is so, the conclusion of the majority that no such evidence existed or was suppressed in this case is open to question, since the post-conviction court prevented all attempts of counsel to introduce evidence of the girl’s condition (including a psychiatric diagnosis and evidence presented at a juvenile proceeding) or of the fact that Montgomery County police officials knew of such evidence. If a new hearing is held in the state courts, an inquiry into these matters might be deemed appropriate. The record before us affirmatively demonstrates that both Detective Collins and Mr. Kardy, who supervised the prosecution, had read the report before trial. Collins testified at the trial that he wrote up the report and had read it the night before. At the post-conviction hearing Kardy was asked: “[Yjou saw the police report prior to trial, of course? A. Yes.” The testimony was as follows: “Q. Did you have a discussion with this girl about how many boys had had intercourse with her? . . . “A. No. “Q. You say you did not? "A. No, sir. “Q. You never did discuss that with her? “A. No, sir.” “Q. Why are you telling a different story today than the story you told the police immediately after this happened, and the story you told at the preliminary hearing? “A. Because I have thought about it. ••“Q. What do you mean you have thought about it? “A. Well at the time I was confused — people were giving names, and I had no idea of what the boys’ names were. “Q. Who was given names? “A. After the line-ups; after I had identified all three of the men.” The report recites that she was asked the following questions, apparently by Lieutenant Whalen, and gave the following answers: “Q-W. How many of them had intercourse with you? “A. The bigger one [John] tried first, then the other two. “Q-W. Did any of them have an emission? “A. Yes, the second one and maybe the third.” Certainly the test cannot 'be, as is suggested, that a remand would be justified only if the evidence presented “necessarily excludes the conclusion that John Giles achieved penetration, however slight.” See Hunt v. Warden, 335 F. 2d 936, 941-943 (C. A. 4th Cir., 1964); Midgett v. Warden, 329 F. 2d 185 (C. A. 4th Cir., 1964), and the other cases discussed in Note, 40 N. Y. U. L. Rev. 154, 193-195 (1965). 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_casesource	158	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. TONASKET v. WASHINGTON et al. No. 71-1031. Argued December 12-13,1972 Decided April 24,1973 Robert L. Pirtle argued the cause and filed briefs for appellant. Slade Gorton, Attorney General of Washington, argued the cause for appellees. With him on the brief were Timothy R. Malone, Senior Assistant Attorney General, and William D. Dexter, Assistant Attorney General. Alvin J. Ziontz argued the cause and filed a brief for Confederated Tribes of the Colville Reservation et al. as amici curiae. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Frizzell, Harry R. Sachse, and Edmund B. Clark for the United States; by Charles A. Hobbs and Richard A. Baenen for the National Congress of American Indians; by David H. Getches for the Native American Rights Fund; and by Pearson, Yurok Indian and Trader on the Hoopa Reservation. William D. Dexter, Assistant Attorney General of Washington, and Eugene F. Corrigan filed a brief for Multistate Tax Commission as amicus curiae urging affirmance. Per Curiam. The judgment of the Supreme Court of Washington is vacated, and the case is remanded to that Court for reconsideration in light of §§ 6 and 7 of c. 157, 1972 Extraordinary Session Laws of the State of Washington, and this Court’s decision in McClanahan v. Arizona State Tax Comm’n, ante, p. 164. 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. 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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_usc2	5	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 46. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. SEA-LAND SERVICE, INC. v. Juanita M. KREPS, Individually and as Secretary of Commerce, et al., American President Lines, Ltd., Appellant. SEA-LAND SERVICE, INC. v. Juanita M. KREPS, Individually and as Secretary of Commerce, et al. Nos. 76-1204 and 76-1389. United States Court of Appeals, District of Columbia Circuit. Argued 17 March 1977. Decided 30 Sept. 1977. Rehearing Denied Nov. 1, 1977. Warner W. Gardner, Washington, D. C., with whom Franklin D. Kramer, Washington, D. C., was on the brief, for appellant in No. 76-1204. Michael Kimmel, Atty., Dept, of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty. and Leonard Schaitman, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellants in No. 76-1389 and appellee, Kreps in No. 76-1204. Morton Hollander, Atty., Dept, of Justice, Washington, D. C., also entered an appearance for appellants in No. 76-1389. Edward M. Shea, Washington, D. C., with whom Gary R. Edwards, Washington, D. C., was on the brief, for appellee, Sea-Land Service, Inc. Before McGOWAN, ROBINSON and WILKEY, Circuit Judges. Opinion for the Court filed by WILKEY, Circuit Judge. Dissenting opinion filed by SPOTTS-WOOD W. ROBINSON, III, Circuit Judge. WILKEY, Circuit Judge: This appeal is from an order of the District Court (Robinson, J.) reversing the decision of the Maritime Subsidy Board (hereinafter the Board) to grant an amended operating differential subsidy (ODS) contract to intervenor-appellant American President Lines, Ltd. (APL) pursuant to the Merchant Marine Act of 1936 (the Act). Before the Board can grant an ODS to a United States flag carrier, it is required by section 605(c) of the Act to find that “the service already provided by vessels of United States registry is inadequate.... ” The sole issue presented in this appeal is whether the Board can lawfully recognize transoceanic cargo carried by U. S. flag vessels between Canada and the Far East in making the finding as to the adequacy of U. S. flag service on a particular trade route. The Board ruled that such cargo could be recognized for purposes of making the section 605(c) adequacy determinations; the District Court reversed the Board on this point. We conclude that the District Courts’ interpretation of section 605(c) was in error and that the Board’s position was a proper interpretation and application of the Act entitled to deference from the reviewing court. Accordingly, we reverse the order of the District Court and remand the case with instructions to affirm the Board’s decision to grant the ODS application of APL. I. BACKGROUND A. Statutory Framework. The Merchant Marine Act of 1936 was enacted to foster the development and continued maintenance of a modern merchant marine fleet for the United States. The Act’s declaration of policy states that It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of serving as a naval and military auxiliary in time of war or national emergency * * . To accomplish these goals the Act establishes two subsidies for American shipping enterprises — the operating-differential subsidy that is the focus of this appeal, and a construction-differential subsidy (CDS) that is not implicated in these proceedings. The operating-differential subsidy is governed by Title VI of the Act. Under section 601(a) of the Act, the Secretary of Commerce is authorized and directed “to consider the application of any citizen of the United States for financial aid in the operation of a vessel or vessels, which are to be used in an essential service in the foreign commerce of the United States * The approval of an application for ODS is predicated on a determination by the Secretary that “the operation of such vessel or vessels in an essential service is required to meet foreign-flag competition and to promote the foreign commerce of the United States”; that the applicant possesses the vessels and qualifications necessary to enable him “to meet competitive conditions and promote foreign commerce”; and that the subsidy is “necessary to place the proposed operations * * * on a parity with those of foreign competitors, and is reasonably calculated to carry out effectively the purposes and policy of this Act.” The term “essential service ” is expressly defined in section 601(a) to mean “the operation of a vessel on a service, route, or line described in section 211(a) * * .” Section 211(a) of the Act authorizes and directs the Secretary to determine [t]he ocean services, routes, and lines from ports in the United States, or in a Territory, district, or possession thereof, to foreign markets, which are, or may be, determined by the Secretary of Commerce to be essential for the promotion, development, expansion, and maintenance of the foreign commerce of the United States, and in reaching his determination the Secretary of Commerce shall consider and give due weight to the cost of maintaining each of such steamship lines, the probability that any such line cannot be maintained except at a heavy loss disproportionate to the benefit accruing to foreign trade, the number of sailings and types of vessels that should be employed in such lines, and any other facts and conditions that a prudent business man would consider when dealing with his own business, with the added consideration, however, of the intangible benefit the maintenance of any such line may afford to the foreign commerce of the United States, to the national defense, and to other national requirements!)] If the Secretary approves the application for an ODS, a contract is entered into with the applicant for payment of the subsidy. The amount of the ODS is the excess of certain operating costs (wages, insurance, maintenance and repairs) incurred in the operation of the subsidized vessel over the estimated fair and reasonable cost of the same items of expense if the vessel were operated under the registry of a foreign country whose vessels are substantial competitors of the subsidized vessel. The subsidy contract specifies the trade route (the “essential service”) for which the subsidy is authorized, including the number of vessels to be operated thereon, and the minimum and maximum number of outbound and inbound sailings by such vessels per year. Contracts are typically for 20-year terms. Section 605(c) of the Act — the provision involved in this case — provides in pertinent part: No contract [for ODS] shall be made * with respect to a vessel to be operated in an essential service served by citizens of the United States which would be in addition to the existing service, or services, unless the Secretary of Commerce shall determine after proper hearing of all parties that the service already provided by vessels of United States registry is inadequate, and that in the accomplishment of the purposes and policy of this Act additional vessels should be operated thereon * * * The Secretary of Commerce has interpreted this provision to cover significant changes in existing ODS contracts involving additional service (not only new ODS contracts); and to cover, among other things, additional sailings by existing subsidized vessels as well as the operation of additional vessels by existing subsidized lines. The effect of section 605(c) is thus to bar any increase in the maximum number of sailings specified in an ODS contract for a subsidized line operating in a particular trade route, if any other objecting American shipping company (subsidized or unsubsidized) operates U. S.-flag vessels in that trade route, unless the Secretary determines at a hearing that the existing service provided by all U. S.-flag vessels is “inadequate.” Under a general guideline established by the Board, carriage by U. S.-flag vessels of less than 50 percent of the available waterborne U. S. foreign commerce on a particular trade route will be considered “inadequate.” Carriage of 50 percent or more of the available U. S. foreign commerce by U. S.-flag vessels will be considered adequate unless a higher percentage is feasible. In summary, the Act authorizes the payment of ODS in order to promote the development of an American merchant marine, both for national defense purposes and to carry a substantial portion of this country’s foreign commerce. ODS is authorized for U. S.-flag vessels in order to meet foreign flag competition and to carry U. S. foreign commerce in particular essential trade routes between American and foreign ports. Where competing U. S.-flag carriers operate, no ODS contracts may be executed, and no additional sailings by subsidized vessels can be authorized, unless existing services provided by all U. S.-flag vessels in a particular trade route are determined to be inadequate. B. The Application by APL. APL, a subsidized line, filed an application with the Board on 3 June 1971 requesting authority for additional sailings between ports in the Pacific Northwest of the U. S. and the Par East, within Trade Route No. 29. Trade Route No. 29 shipping service has been determined by the Secretary of Commerce to be an “essential service” under section 211(a) of the Merchant Ma-riñe Act. This Route is the ocean trade route between U. S. Pacific ports (in Alaska, Washington, Oregon, California, Hawaii, and U. S. islands lying between the United States and the Far East) and ports in Japan, Taiwan, Philippines, the Continent of Asia from the U.S.S.R. to Thailand, inclusive, and other Pacific Islands lying between the United States and the Continent of Asia. The principal American ports served by Trade Route No. 29 are Seattle and Tacoma (Washington), Portland (Oregon), and San Francisco and Los Angeles (California). There are two adjacent Canadian ports in the Puget Sound area, Victoria and Vancouver, in British Columbia. As a matter of practice, most U. S.-flag and foreign-flag trans-Pacific vessels which serve the American ports in Puget Sound, including the parties to this case also serve one or both of these Canadian ports. The APL application sought the approval of the Board for an increase in the maximum number of sailings by its vessels operating on Route 29 from 60 to 80 sailings per year. In consequence of converting four breakbulk freighters into containerships, APL proposed to revise - its trans-Pacific service by instituting a weekly shuttle service between the Pacific Northwest and Japan (i. e., 52 round-trip sailings). In addition, APL proposed using 6 additional breakbulk vessels (5 having some container capacity), to institute 28 annual sailings (13-day frequency) from the Pacific Northwest to the Korea-Singapore range (involving Trade Route Nos. 29 and 17). APL expected that the latter vessels would be converted to partial or full containerships by 1975. Since these containerships are capable of being loaded and unloaded faster than breakbulk vessels, and are faster, APL could expect to increase its sailings from 60 to 80 per year without any increase in the number of its vessels. Since no increase in the number of vessels was requested in this application, no increase in the amount of ODS was involved. The increase in the number of sailings was, however, deemed by the Board sufficient to require notice and opportunity for hearing under section 605(c) of the Act. C. Factual Basis Underlying the Dispute. The dispute in this case centers around the particular technique (the formula) used by the Board in making the section 605(c) adequacy determination. At this stage in the litigation there is no dispute as to the underlying data to be used in the formula that is chosen; the dispute is solely over the proper formula to apply to these undisputed facts. Since the data as to projected capacity and cargo are central to all phases of this case, we provide that data at this point and reserve our discussion of the proper calculation technique for Part II of this opinion. In discussing the data involved in this case, there are two sets of figures that are relevant to a determination of adequacy. The first is the available capacity of the ships serving the particular geographical area in question; the second is the available cargo to be carried to or from that geographical area. There is no dispute that it is the ratio of capacity to cargo that yields the relevant percentage in determining the adequacy of U. S.-flag service. Rather the controversy revolves around the correct method of determining the available capacity of U. S.-flag vessels. The Board projected that, for calendar year 1975, 755,000 long tons of container-ship cargo would be available for shipment from the Far East inbound to American ports in the Pacific Northwest portion of the Trade Route No. 29. The Board’s figures also showed that a total of 336,000 long tons of containership cargo would be available for shipment from the Far East inbound to the Canadian ports off Puget Sound. The combined projected available inbound containership cargo for this particular sea route was thus 1,091,000 long tons for 1975. The Board’s figures revealed that the projected net cargo-carrying capacity of the inbound containerships of all U. S.-flag operators serving the Pacific Northwest portion of Trade Route 29 would be 432,000 long tons for 1975. It is important to note that this figure was based on the assumption that no applications for increased sailings, such as made by APL, would be granted. In addition to this U. S.-flag capacity, the Board projected that the capacity of the containerships of all foreign-flag operators serving the inbound Pacific Northwest portion of Trade Route 29 would be 595,000 long tons for 1975. Thus, according to the Board, the total inbound net cargo capacity for all U. S. and foreign-flag containerships on the relevant portion of Trade Route 29, was projected to be 1,027,000 long tons for 1975. Quite significantly, this projected capacity was less than the projected available inbound cargo of 1,091,000 long tons for 1975. Now that these figures relating to available capacity and cargo have been presented, we can proceed to describe how the raw data was treated in the proceedings at the agency level and in the district court. D. The Agency Proceedings. 1. The Initial Agency Decision. The application by APL was consolidated with the applications of other subsidized lines for additional service on Trade Route No. 29. The U. S.-flag carriers operating at the time on the Pacific Northwest portion of Trade Route 29 were APL (subsidized), States Steamship Company (subsidized), and Sea-Land Service, Inc. (unsubsidized). Sea-Land Service, Inc., the appellee in this case, intervened in the proceedings to oppose the applications under section 605(c) of the Act. Sea-Land contended that the service already provided by vessels of United States registry on the Pacific Northwest portion of Trade Route 29 was “adequate”, and therefore no increase in sailings by a subsidized line was authorized on that route under the terms of section 605(c). Following a hearing the administrative law judge (AU) issued a decision on 7 March 1973. In this decision the ALJ denied APL’s application for the requested increase in sailings. With respect to the Canadian cargo issue, the AU held: As a final matter, Sclar [the expert witness for APL] included Canadian-Far Eastern containerizable cargoes in his 1975 projection. It is accepted that such cargo may actually move in U. S.-flag vessels on T.R. 29 and to that extent, reduce the vessel capacity otherwise available for T.R. 29 cargoes. What is not accepted is the U. S.-flag subsidized operators’ claim that a part of their capacity for which subsidy payments are intended to give U. S. cargoes a priority will be assigned to Canadian traffic and that additional subsidized capacity will be required for U. S. cargoes. This is the effect of adding Canadian cargoes to the pool for determining adequacy of service. Such procedure is rejected. The portion of the relevant market analyzed in Sclar’s projections here found acceptable, therefore, is limited to the T.R. 29 liner containerized cargo volumes, and the forecasts in Table 5, infra, reflect this limitation. * * * * * * There can be no disagreement that U. S.-flag vessels operating under subsidy contracts must give priority to the.commerce of the United States over that of foreign nations including • Canada. Therefore, in deciding whether the service on T.R. 29 is adequate, the entire capacity of such vessels will be considered available for competitive commercial cargo on the route except as the United States may have allowed a pre-emption for other traffic. * * * The formula approved and used by the ALJ in making the section 605(c) adequacy determination can be represented as follows; _Total U.S. Vessel Capacity_ Available Cargo Inbound to U.S. Ports When this formula is applied to the facts enumerated in Part I.C., supra, the result is that the U. S.-flag vessels have the capacity to carry some 57% of the available projected cargo inbound to U. S. ports, a figure that is well above the 50% guideline generally used by the Board. This formula does not provide for a reduction in the capacity of the U. S. vessels to take account of the Canadian cargo that is carried by these vessels. 2. The Decision of the Board. The decision of the ALJ was appealed to the Board on a variety of grounds, including the Canadian cargo issue. The Board issued its decision in consolidated proceedings on 3 January 1974. On the Canadian cargo question the Board reversed the ALJ, holding that: In a determination of ship container capacity to containerized cargo, Canadian cargo, which the parties did carry in 1970 and which there is no evidence to indicate they will not carry in 1975, must be recognized. The Judge accepted AML’s and other ship operators’ container capacity without making any reduction for this cargo * * *, but he excluded it from the 1975 pool of containerized cargo. A more reasonable approach is to provide for a reduction in ship container capacity [along with a] reduction in the pool of containerized cargo. The formula used by the Board to determine adequacy is as follows: Total U.S. vessel capacity minus Canadian cargo space Available Cargo Inbound to U.S. Ports The application of this formula yields the conclusion that U. S.-flag vessels would carry only 37% of the cargo available for inbound shipment to the United States. The difference in result achieved under this formula results from subtracting one-half of the Canadian cargo space from each of the U. S and foreign-flag capacities. The Board also found that, if it were to grant the request by APL for additional sailings, the additional vessel service would result in an inbound net capacity of 514,000 long tons (as opposed to 432,000 long tons without the additional service) for all U. S.-flag containerships. Along with the projected 595.000 long tons of foreign vessel net capacity, a combined inbound net capacity of 1.109.000 long tons would result with the addition of APL’s requested service. This total would then be enough to accommodate the total 1,091,000 long tons projected available inbound cargo. If the increased net capacity figure of 514.000 long tons is used in the Board’s formula, the percentage of cargo to be carried by U. S.-flag vessels rises to 48% from 37%. Given these figures (48% with approval of the application and 37% without) the Board held that the existing U. S.-flag service would be “inadequate,” and that the additional service requested by APL would be warranted. The Board ruled: Whether or not these projected U. S.flag participation percentages establish adequate or inadequate U. S.-flag service turns on the following test of adequacy: [W]e should consider a 50 percent objective as a goal in determining whether we have a merchant marine sufficient to carry ‘a substantial portion of the waterborne export and import foreign commerce of the United States,’ and in applying this guideline to any given factual situation no particular arithmetical percentage will be deemed per se adequate or inadequate; rather, it will be recognized that a U. S. merchant marine service of the highest percentage practically attainable is our goal, [footnote omitted]. Hence, generally 50 percent U. S.-flag participation has been used as a guideline, but it may exceed that percentage if a higher percentage is practically attainable. The 1975 projected inbound PNW trade of 48 percent U. S.-flag participation with approval of the containership sailing applications is less than the 50 percent objective. It is significantly better than the 37 percent U. S.-flag participation anticipated without approval of these applications. The increased capacity will consist of modern, competitive vessels efficiently deployed and historically operated at relatively high utilization percentages. We therefore find that the 1975 projected U. S.-flag participation of 37 percent in T.R. 29 containerized liner commercial traffic inbound to PNW is inadequate U. S.-flag service and additional service to provide 48 percent participation is warranted. The Board further held: In summary, grant of AML’s application will serve the important policy objectives of the Act of development of efficient and effective U. S.-flag operations without serious adverse impact on other U. S.-flag operations and of reduction of U. S.-flag operators’ dependence on operating subsidy with no attendant increase in subsidy. Further, there is a reasonable expectation that approval of AML’s application will lead to increased U. S.-flag participation on T.R.s 17 and 29. Accordingly, we find that grant of AML’s application will be in the accomplishment of the purposes and policy of the Act within the meaning of Section 605(c). On 18 January 1974 appellee Sea-Land filed with the Secretary of Commerce a petition to review the Board’s decision. This petition was denied by the Secretary on 28 March 1974. The Board granted APL’s application on 26 April 1974. On 31 July 1974, APL’s contract for ODS was amended, pursuant to the Board’s decision, by increasing the maximum number of sailings from 60 to 80. E. The Decision of the District Court. On 23 May 1974 appellee Sea-Land Service filed this action in the District Court seeking to set aside the Board’s decision granting APL’s application for 20 additional sailings on the Pacific Northwest portion of Trade Route No. 29. Sea-Land contended inter alia that the Board had erred in reducing the actual vessel capacity figures to reflect cargo expected to be discharged or picked up at the adjacent Canadian ports in the Pacific Northwest, “thereby effectively providing for United States government subsidy to the foreign commerce of Canada”. APL intervened as a party defendant to support the Board’s decision on the Canadian cargo question. On cross-motions for summary judgment the district court ruled in favor of Sea-Land on the Canadian cargo issue. The court held: The Court is persuaded that the Administrative Law Judge was correct and the Board in error [on the Canadian cargo issue]. In determining “adequacy” in a Section 605(c) proceeding, the Board is to include cargo moving in United States foreign commerce only. Although it is entirely permissible and indeed proper to consider the existence of trade “external” to the United Stages foreign commerce, the Board has done much more here. By improperly including the Canadian cargo in its calculations, the Board has created an unrealistic and improper picture of the adequacy of the service provided by United States vessels. The District Court accordingly ordered the case to be remanded to the Board for reconsideration of the “adequacy” determination in accordance with its memorandum. The apparent intent of the court’s order was to require the Board to deny APL’s application for 20 additional sailings, since, as the administrative law judge held, existing U. S.-flag vessel service would be “adequate” under a quantitative assessment if its entire net capacity should be allocated to the available cargo on the Pacific Northwest portion of Trade Route No. 29 which, is expected to be discharged or loaded solely at the American ports in the Pacific Northwest. The District Court thus sanctioned the formula used by the ALJ in the initial agency decision: that is, to ignore the Canadian cargo in determining the capacity of U. S.-flag vessels operating on the Northwest Portion of Trade Route 29. This decision to ignore the Canadian cargo has the effect of increasing the attributable capacity of U. S. vessels and thus to increase the percentage of the available cargo which they can putatively carry. With this background in mind, we now proceed to an analysis of the legal issues presented in this case. II. ANALYSIS A. Scope of Review. We are called upon in this appeal to review the actions of the District Judge in reversing the decision of the Maritime Subsidy Board; this is not a direct appeal from the final decision of an administrative agency. Although the grounds on which the District Judge reversed the Board were not clearly stated, it appears to us that the decision was one of statutory construction; that is, the reversal was based on the District Judge’s conclusion that section 605(c) of the Act prohibited the recognition of Canadian cargo in making the required adequacy determination. In reviewing a decision of the District Court based on statutory construction — i. e., a question of law — we are not limited by the doctrines of “clearly erroneous” or “abuse of discretion” that are applicable to the review of factual determinations. Rather, the role of the appellate court is to determine the proper legal premise and to correct the error, if any, of the District Judge. In the circumstances of this case, we have “a view as to the applicable legal principle that is different from that premised by the trial judge; ” our reversal stems from this disagreement over the applicable rule of law and from a determination that the District Judge was unreasonable, arbitrary, or chargeable with an abuse of discretion. B. The Language of the Statute. As a preface to the analysis of the issue presented in this appeal, it is necessary to emphasize the point that there is no question as to the lawfulness or the propriety of APL’s carriage of Canadian cargo. With only minor exceptions, every line which served the U. S. Pacific Northwest in foreign commerce in 1975 under any flag also served Canadian ports in British Columbia. It is conceded by all parties to this case that this customary carriage of Canadian cargo by a subsidized U. S.-flag vessel is lawful and proper. The relevant statutory language provides no direct guidance in resolving the dispute over the recognition of Canadian cargo under section 605(c). There is, however, a negative inference to be drawn from an examination of this language that accentuates the deference to be given the Board’s interpretation, and, indeed, emphasizes the rationality of that interpretation, as our independent analysis shows. The express language of section 605(c) does not deal with the power of the Board to recognize or to ignore cargo discharged or loaded at nearby contiguous foreign nation ports for the purpose of determining the adequacy of U. S.-flag service on a particular trade route. The Act simply does not define the term “inadequate”; in the absence of a direct statutory mandate the agency charged with administering the statute (the Board) must of necessity look to the purposes underlying the particular statutory provision and the Act in general in order to delineate the contours of this critical term. In determining the proper construction to be applied to section 605(c), we shall engage in this same type of analysis; that is, we shall first examine the Board’s decision to recognize Canadian cargo iri light of the purposes of section 605(c) and then compare this decision with the basic purposes of the Act itself. C. Purpose of Section 605(c). It is generally agreed that section 605(c) “is primarily designed to avoid subsidizing a trade when the trade is already adequately served by U. S.-flag carriers, i. e., overton-naging.” This concern about overtonnag-ing is designed “to ensure that no undue competitive impact to United States-flag operators result[s] from [a] subsidy award.” The first point to be made concerning the purpose of section 605(c) relates to the nature of the inquiry needed to accomplish the objective set forth in the provision. In order to determine if a competitor has suffered actual economic injury as the result of an ODS award, an intensely practical inquiry is necessary. This inquiry must focus on the cargo and capacity that are in fact available on a particular trade route; if a sizeable part of the cargo actually available and actually carried is ignored, a realistic assessment of competitive economic injury is not possible. The Board’s decision to recognize Canadian cargo is consistent with the need for a practical and realistic approach to the determination of the adequacy of existing U. S.-flag service. The economic purpose of section 605(c) is not subverted by recognizing Canadian cargo in this case. The Canadian-port cargo is readily available for carriage by most lines serving the American ports in the Pacific Northwest portion of Trade Route 29, and is in fact carried by most such lines. Indeed, as noted previously, if the Board did not approve the additional sailings sought by APL, the total available cargo (American and Canadian ports) for 1975 would not be carried, or would be disproportionately carried by foreign-flag lines serving the area. Since the total capacity would not, under the Board’s projections, equal the total available cargo in 1975 without the approval of APL’s request, the existing vessel service was certainly “inadequate” in a practical sense. While this evidence as to inadequacy provides direct support for the Board’s decision to encourage further American shipping activity in Trade Route 29, it does not speak directly to the issue of a proper competitive balance between subsidized and unsubsidized American shipping lines. It is to this point that we now turn. If a subsidized line such as APL cannot offer additional sailings if the justification for the increase relies in part on available cargo to or from contiguous foreign nation ports, the subsidized lines would be put at a competitive disadvantage. In such a situation, the foreign and unsubsidized lines could compete for all of the available cargo in a contiguous U. S./foreign port area; the subsidized lines, however, would tend to be limited to their present level of services because total U. S. flag service would nearly always be overcapacitated if only the American-port cargo is recognized. Subsidized lines could rarely if ever justify an increase in services to carry available cargo to and from a common U. S./Canadian port area; approval of any increase would generally be prevented if it is assumed (contrary to fact) that all U. S.-flag vessel capacity is devoted only to carriage of American-port cargo. This would appear to be unfair competition per se, a result directly contrary to the fair competition goal underlying section 605(c). While section 605(c) was designed to avoid unfair competition in favor of subsidized lines, it certainly was not designed to permit the opposite result. The Board’s ruling in this case does not abandon the goal of preventing overtonnag-ing on trade routes; rather, the decision pursues this goal with a fierce concern for the realities of the situation existing on Trade Route 29. This concern for the real world is to be commended; far too often government regulatory agencies depart from this worldly context in pursuing the policies embodied in the statutes which they administer. The concern for realistic information exhibited by the Board in this case allows the agency to accommodate the interests of both the regulated and unregulated parties in a manner consistent with the purposes of the legislation. That is, the use of the actual facts allowed the Board to reach a decision that avoids actual overton-naging in the carriage of American cargo by American vessels, while moving toward the goal of adequate available U. S. tonnage. Given the compelling reasonableness of the Board’s approach in recognizing the Canadian cargo, and the competitive consequences that would be visited on APL and other subsidized lines by the District Court’s decision, we believe that the Board’s interpretation of section 605(c) is the interpretation that is consistent with the statutory provision. The consistency of the Board’s interpretation with the broader purposes of the Act will now be considered. D. Purposes of the Act. The two basic purposes of the Act are set forth in Section 101 of the legislation; the promotion of U. S. foreign commerce, and the concern for national defense. 1. Promoting U. S. Foreign Commerce. Section 101(a) of the Act declares that it is necessary to have a merchant marine “sufficient to carry... a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such commerce at all times.” Appellee Sea-Land’s main argument to this court is that the Board’s decision is not directed at promoting U. S. commerce to the maximum extent feasible but rather represents a “subsidizing at the expense of the U. S. taxpayer, not only [of] our own foreign commerce, but that of Canada also.” We disagree strongly with the appellee on this point; we believe that the Board’s decision to recognize Canadian cargo does in fact promote the goal of having a merchant marine sufficient to carry a substantial portion of the U. S. foreign commerce. Under section 605(c), subsidy awards are made “with respect to a vessel to be operated in an essential service.” It is true that “essential service” is defined as a service which promotes the “foreign commerce of the United States,” and that foreign-to-foreign commerce is not included in this definition. But there is nothing in the Act to indicate that a subsidized vessel must serve U. S. commerce exclusively. Indeed, as we noted previously, there has been no suggestion that it is unlawful or improper for APL, or any other,line (subsidized or unsubsidized) to carry Canadian cargo. It is only in circumstances where carriage of foreign-to-foreign cargo by subsidized lines would conflict with the carriage by such lines of a “substantial portion” of the U. S. foreign commerce that the legislative policy as expressed in section 101 would be subverted. Such is not the situation presented in this case. In cases such as the present one where the foreign-to-foreign cargo is for practical purposes within the same trade route as the U. S.-to-foreign cargo, the recognition of the foreign-to-foreign cargo in fact enhances the goal of increasing the U. S.-flag carriage of U. S. foreign commerce. The liner operator serving the Pacific Northwest can with the support of the Canadian traffic offer more frequent service or larger vessel capacity to the U. S. ports in the Pacific Northwest than he could if his carriage were confined to that trade alone. And, for every unit of increase in U. S.-flag carrying capacity, a proportionately greater share of that unit can be assumed to be devoted to the U. S. foreign trade. Thus, for example, of the 20 additional sailings proposed by APL in this case, it may be assumed that the additional carrying capacity would be devoted to increased carriage of American-port cargo in at least the same proportion that the total American-port cargo (755,000 tons inbound) bears to the total Canadiah-port cargo (336,000 tons inbound). This results in substantially increased carriage of U. S. foreign commerce. On the other hand, to ignore the Canadian-port cargo, and to deny any increased service by a subsidized line having additional cargo carrying capability, would either result in inadequate over-all shipping service for all of the available cargo, both Canadian and U. S., or would permit foreign-flag carriers eventually to fill their holds with the available excess Canadian and U. S. cargoes. Both such possibilities or results are contrary to the legislative goal of increasing the U. S.-flag carriage of U. S. foreign commerce. Thuá, it is clear that recognition of contiguous foreign nation cargo, for purposes of increased services by subsidized lines, is not in conflict with the Act’s policy of promoting U. S.-flag carriage of a “substantial portion” of U. S. foreign commerce. On the contrary, by increasing the U. S.flag capacity to carry both the Canadian and American cargo, the legislative goal of increasing the U. S.-flag carriage of U. S. foreign commerce is directly promoted. 2. Concern for National Defense. In addition to the promotion of U. S. foreign commerce, section 101 of the Act declares the need for a merchant marine “capable of serving as a naval and military auxiliary in time of war or national emergency..” This concern for national defense was a primary purpose of the Merchant Marine Act; indeed, as the Senate Report on the bill stated, Our Navy, without adequate auxiliaries, is as ineffective as an army at the front without munitions and food transportation to support it. From the standpoint of national defense, our safety demands imperatively an immediate and effective solution of the problem of building up our merchant marine. The national defense objective of having a modern fleet in being and in readiness is not in any way impaired by the fact that the U. S. ships also call at Canadian ports; for purposes of serving as a naval auxiliary, “a ship is a ship regardless of whether it is used in intercoastal or foreign trade or partly in one and partly in the other.” As noted in Part II, supra, the decision of the Board in this case can be seen Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 46. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_r_nonp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PENOBSCOT BAY LONGSHOREMEN’S LOCAL 1519, Respondent. No. 6019. United States Court of Appeals First Circuit. Nov. 21, 1962. Warren M. Davison, Attorney, Washington, D. C., with whom Stuart Roth-man, General Counsel, Dominick L. Ma-noli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Robert A. Armstrong, Attorney, were on brief, for petitioner. Nathan Greenberg, Boston, Mass., for respondent. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. PER CURIAM. The respondent union protests an order imposing upon it responsibility for the back pay of a part-time non-union worker who did not return to work, except when no union men were available, following the union’s insistence that the employer respect its agreement *to hire union men first. Respondent tells us such agreements are “common.” They are nonetheless illegal. N. L. R. B. v. Jarka Corp., 3 Cir., 1952, 198 F.2d 618; N. L. R. B. v. Lummus Co., 5 Cir., 1954, 210 F. 2d 377. The union’s contentions that “their union obligations required them to make these overtures,” and that because the charging party then told the employer he would not come back when union men were available because “I don’t want any trouble,” and so must be regarded as having “voluntarily ceased work,” are without merit. The union plainly caused an employer to discriminate against an employee on the basis of his lack of union membership in violation of section 8(b) (2) of the Labor Management Relations Act, 1947, 29 U.S.C. § 158(b) (2). Decree will be entered enforcing the order of the Board. . The word “agreement” was put into a witness’s mouth by respondent’s counsel. We think on the evidence as a whole “poEcy” or “practice” would be more accurate. However, any difference is here immaterial. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. Answer:
songer_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. UNITED STATES of America, Plaintiff-Appellee, v. Gary Russell ESTEP, Defendant-Appellant, and Pamela Rollins Estep, Claimant-Appellant, St. Paul Fire & Marine Insurance Company and Farmers & Merchants Bank of Crescent, Oklahoma, Appellees. No. 84-1313. United States Court of Appeals, Tenth Circuit. April 29, 1985. L. Patrice Latimer of L. Patrice Latimer Professional Corp., Oklahoma City, Okl., for defendant-appellant and claimant-appellant. John E. Green, First Asst. U.S. Atty. (William Price, U.S. Atty., with him on brief), Oklahoma City, Okl., for plaintiff-appellee U.S. of America. Tom E. Mullen of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for appellees St. Paul Fire & Marine Ins. Co. and Farmers & Merchants Bank of Crescent, Okl. Before LOGAN and SETH, Circuit Judges, and SAFFELS, District Judge . Honorable Dale E. Saffels, United States District Judge for the District of Kansas, sitting by designation. SETH, Circuit Judge. This- case revolves around money, $10,-134 in cash, currently resting with the court in the Western District of Oklahoma. Appellant Pamela Jean Rollins turned over the money to an FBI agent, Cleo Fowler, during the course of Mr. Fowler’s investigation of a bank burglary. Agent Fowler believed Pamela Rollins’ friend, Gary Estep, “fished” the money from a night depository located at the Farmers & Merchants Bank in Crescent, Oklahoma. The government used the money, assorted $100, $50 and $1 bills, as evidence in a trial of Mr. Estep for bank burglary. A jury acquitted Mr. Estep. Following the trial appellant Estep and Miss Rollins moved for return of the money. The St. Paul Fire & Marine Insurance Company also requested release of the money to it. The insurance company paid the Farmers & Merchants Bank for the loss and claims the money by right of subrogation. After an evidentiary hearing the district court ordered the money released to the insurance company. The appellants appeal from this court order. They argue that the court improperly took judicial notice of all evidence introduced at the criminal trial. They also claim the court erred by finding the insurance company produced sufficient evidence of a better right to the money. During the criminal trial facts relevant to the insurance company’s claim were presented. On a Friday evening Mr. Clifford Mapes, a store owner in Crescent, Oklahoma, placed a money bag in the night depository of the Bank. He knew he began the business day with $10,400 in $100 and $50 bills. He kept large bills because many of his customers worked in the oil fields and bought items from his stores if he could cash their paychecks. Mr. Mapes testified that the stores took in an unknown number of large bills during the day. At the end of the day Mr. Mapes totaled his receipts of cash, checks and credit card receipts for deposit. The deposit bag contained $15,583.74. He did not separately total the cash, checks and credit card receipts. He estimated the total deposit other than cash to be between $3,000 and $4,000. He returned to the Bank on Monday and discovered that his deposit bag had disappeared. FBI agent Cleo Fowler investigated the missing deposit. He talked with Pamela Rollins and her two sisters, Teresa Rollins and Loretta Adams, at Pamela Rollins’ home. Agent Fowler focused his investigation on Mr. Estep. Loretta Adams and her husband had called the Crescent Police Department before the deposit theft and the Logan County Sheriff’s office after the theft and informed both departments that Gary Estep was involved in the theft. Agent Fowler contacted Pamela Rollins because she held herself out as Mr. Estep’s common-law wife at various times. The three sisters left agent Fowler in Pamela’s house and returned with $10,134 in a brown paper bag. The money included 76 $100 bills, $2,450 in $50 bills and $84 in $1 bills. Teresa Rollins testified that Mr. Estep gave her the money to hold for Pamela. Teresa' had placed it at a friend’s house for safekeeping. Agent Fowler acknowledged the receipt of cash from Pamela in a handwritten document. The insurance company argues that the money handed over to agent Fowler was money stolen from the Bank. The root of Pamela Rollins’ claim to the money is her possession of the cash before it was given to agent Fowler. Mr. Estep states in his motion for return of the money that he was the “original bailee.” A judge presiding at a criminal proceeding has the power to return property held as evidence to its rightful owner. United States v. LaFatch, 565 F.2d 81 (6th Cir.); United States v. Wilson, 540 F.2d 1100 (D.C.Cir.); United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir.). This court agrees with other circuits which find subject matter jurisdiction proper because “[i]t makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case.” United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir.). Motions for return of property used as evidence in a criminal trial are normally filed under Rule 41(e) of the Federal Rules of Criminal Procedure. Appellants’ motion invoked this rule. Rule 41(e) generally applies to property seized by the government either legally or illegally. See United States v. Wilson, 540 F.2d 1100, 1103 n. 4, quoting the American Law Institute Model Code of Pre-Arraignment Procedure § SS 280.3 (1975). We treat appellants’ motion as a request for return of property voluntarily given for use as evidence in a criminal trial. Appellants object to the procedure used by the trial judge at the evidentiary hearing. At the start of the hearing the trial judge stated, “I can take judicial notice of all of the evidence admitted into evidence in the trial of this case and do so.” Record, Vol. IV at 18. The introduction of the trial evidence troubles appellants for two reasons. First, neither Miss Rollins nor her attorney were involved in or present at the criminal trial. Miss Rollins was financially unable to order a trial transcript. She complained to the trial court that the admission of trial evidence prejudiced her ability to rebut evidence relied upon by the insurance company. Second, appellants dispute the trial judge’s authority under Rule 201 of the Federal Rules of Evidence to take judicial notice of the entire transcript. Appellants assert that judicial notice of trial evidence under these circumstances is reversible error. We disagree. Judicial notice permits a judge to accept “a matter as proved without requiring the party to offer evidence of it.” IX Wigmore on Evidence § 2565 (Chadbourn rev. 1981). Because a court so acts to remove a party’s evidentiary burden the doctrine demands that a court only notice “matters that are verifiable with certainty.” St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir.). This court adopted the general rule that “[jjudicial notice is particularly applicable to the court’s own records of prior litigation closely related to the case before it.” Id. We recognized in Mansell v. Carroll, 379 F.2d 682 (10th Cir.), that a judge looks to other court records in order to “pierce the formalities of all of the transactions in question.” Although a court is not bound to notice other legal proceedings “[i]t is often done for a part of the record in the same proceeding or in a prior stage of the same controversy.” IX Wigmore on Evidence § 2579 (Chadbourn rev. 1981) (emphasis in original). The evidentiary hearing in the case before us springs from one controversy — the criminal trial of appellant Gary Estep. Motions for the return of property used as evidence in a criminal trial are procedurally a later stage of the same action. See United States v. LaFatch, 565 F.2d 81 (6th Cir.). It was clearly within the court’s discretionary authority to judicially notice the trial transcript of the earlier portions of the same proceeding. Appellants argue however that the judicial notice taken was an abuse of the court’s discretionary power. Appellants’ attorney and Pamela Rollins were not present at the criminal trial. Appellants argue that their attorney lacked an opportunity to hear the trial testimony and examine the full record. Therefore it is urged that appellants could not adequately rebut any evidence of the insurance company’s entitlement based on the trial transcript. We find no abuse of discretion. The trial court recognized appellants’ dilemma at the start of the evidentiary hearing. The court gave appellants’ present counsel ample opportunity to read the trial transcript. The court offered to reopen the proceedings if necessary: “[I]f you feel ... that a transcript should be provided and a further hearing should be forthcoming, then I will certainly entertain any application to that effect that you wish to file.” Record, Vol. IV at 80. Appellants’ attorney admitted at oral argument that one month passed from the date of the evidentiary hearing to the date the court’s order was filed. The court gave appellants a fair chance to review the transcript. They were provided with enough time to be familiar with it and to object with specificity to the admission of the trial record in whole or in part. We conclude that under these circumstances the court acted without error. The remaining issue before this court is who presented a better claim of right to the money? Mr. Estep and Miss Rollins rest their claim on possession and control of the money before it was turned over to the court. The insurance company’s claim depends on evidence presented at trial connecting Mr. Estep to the burglary. The trial court reasoned that Miss Rollins and Mr. Estep failed to make a prima facie case of entitlement to the funds. In United States v. Wright, 610 F.2d 930 (D.C.Cir.), the court found “[t]he seizure of property from someone is prima facie evidence of that person’s entitlement, particularly when the seized property is money — negotiable instruments difficult to identify and trace.” Id. at 939 (emphasis in original). Bare possession is enough to establish some form of interest. See Northern Pacific Railroad Co. v. Lewis, 162 U.S. 366, 16 S.Ct. 831, 40 L.Ed. 1002. The trial court concluded that Miss Rollins failed to prove a prima facie case because she had only “bare momentary possession” of the money, and apparently because of the inferences it drew from evidence as to how she came into possession if indeed she did. There would seem to be a substantial question as to whether Pamela Rollins was the person who had “possession” of the money. It had been given by Mr. Estep to her sister Teresa who had hidden it in a friend’s house or garage. The three sisters in response to the agent’s interview went to the garage and returned with the money in the paper sack and it was given to the agent. He gave the receipt to Pamela. Pamela testified she did not have possession before going with her sisters. Cases identify two methods of rebutting a possessory claim of ownership to money. An adverse claimant may prove ownership by positive identification of the money. United States v. LaFatch, 565 F.2d 81 (6th Cir.). He may also prove that the claimant in possession holds the money unlawfully. City of Waco v. Bridges, 710 F.2d 220 (5th Cir.); United States v. Wright, 610 F.2d 930, 939 n. 39 (D.C.Cir.). The insurance company failed to prove a right to the money by identification alone. The parties stipulated that neither Mr. Mapes nor the Bank could identify the money as funds taken from them. Agent Fowler reported that the investigating agents performed no fingerprinting procedures on either the money or the Bank depository. However the district court found the money Pamela Rollins gave to agent Fowler “strikingly similar” to the money stolen from the Bank, but there was no evidence of the cash total in the deposit bag nor denominations of the bills. The claim of ownership by the Bank or insurance company cannot be based only on identification of the money, and at best only on an estimate of the total cash deposit compared to the total turned over to the agent. How the sister obtained the cash is significant. The insurance company could also prove a right to the money by showing Mr. Estep and Miss Rollins held the money unlawfully. See City of Waco v. Bridges, 710 F.2d 220 (5th Cir.), and United States v. Wright, 610 F.2d 930, 939 n. 39 (D.C.Cir.). The appellee relies on circumstantial evidence connecting Mr. Estep with the depository theft and tracing money from Mr. Estep to Pamela in order to prove its claim under this theory. Appellant Estep’s acquittal of the criminal charge does not preclude questioning his lawful possession of the money. United States v. LaFatch, 565 F.2d 81, 84 (6th Cir.). The trial court found in substance that neither individual claimant had lawful possession of the money. Mike Adams, Pamela Rollins’ brother-in-law, heard Mr. Estep say the Crescent Bank in El Reno, Oklahoma and a bank in Crescent, Oklahoma would be easy to “fish.” Record, Vol. IV at 77, 78. Pamela Rollins’ sister, Loretta Adams, remembered Gary Estep “brought up” the Crescent, Oklahoma bank in a conversation. Id,., at 99. Mr. Adams said Gary Estep described a technique for “fishing out of a night deposit box.” He also stated he saw fishing lines and hooks belonging to Mr. Estep. He “wasn’t sure” Mr. Estep used the equipment to burglarize the depository. As mentioned, Pamela’s sister Loretta and her husband had called the authorities both before and after the burglary to say that Gary Estep would be involved in the theft. The trial court remarked that the demeanor of Pamela when she testified at the hearing was uncertain, hesitant and lacked conviction. Gary Estep argued that he was the “original bailee” and so entitled to the funds. He made no explanation at the hearing as to how he obtained the money. At the criminal trial the explanation was vague and unsubstantiated. The trial court found following the evidentiary hearing: “The standard of proof as to rightful ownership of the funds is a preponderance of the evidence. United States v. LaFatch, [565 F.2d 81, 83 (6th Cir.) ]____ The preponderance of the evidence before this Court is that the funds in question were stolen from the Bank and that St. Paul’s is entitled to the funds by right of subrogation. While the jury failed to find that the evidence established the defendant’s guilt beyond a reasonable doubt there was more than ample evidence to meet the preponderance of the evidence standard that the funds in question were stolen from the Bank’s night depository by the defendant.” AFFIRMED. Question: Are there two issues in the case? A. no B. yes Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edmond Leon LEOPARD, aka “Red” Leopard, Defendant-Appellant. No. 90-7079. United States Court of Appeals, Tenth Circuit. June 26, 1991. Ike Allen Laws, Jr., of Laws & Murdoch, P.A., Russellville, Ariz., for defendant-appellant. John Raley, U.S. Atty., Paul G. Hess, Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee. Before ANDERSON, TACHA, and BRORBY, Circuit Judges. BRORBY, Circuit Judge. Defendant Edmond Leon Leopard appeals his conviction and resulting sentence following a jury trial in which he was found to have: 1) knowingly and intentionally attempted to manufacture methamphetamine, a schedule II controlled substance; 2) knowingly and intentionally possessed a listed chemical, knowing or having reasonable cause to believe that the listed chemical would be used to manufacture a schedule II controlled substance; 3) knowingly and intentionally possessed with the intent to distribute methamphetamine; 4) knowingly used and carried a firearm during and in relation to a drug trafficking crime or crimes for which he may be prosecuted in a court of the United States; and 5) knowingly possessed a firearm which had been shipped or transported in interstate commerce, affecting commerce thereby, after having been convicted of a crime punishable by imprisonment for a term exceeding one year. The district court denied Mr. Leopard’s motion to suppress evidence seized pursuant to a search of his pickup and refused to instruct the jury on the lesser included offense of possession of a controlled substance. The jury returned a verdict of guilty on all five counts charged. The pre-sentence report provided for a base offense level of 36 which was based on testimony that 41.7 pounds of methamphetamine could have been produced by Mr. Leopard with the chemicals and equipment involved. The district court, after conducting a pre-sentence hearing, followed the presentence report and sentenced Mr. Leopard to a term of 327 months as to each of counts I and III and 120 months as to each of counts II and V, all terms to be served concurrently. As to count IV, Mr. Leopard was sentenced to sixty months in prison. The sentence for count IV is to be served consecutively to the sentences in the remaining counts. Before this court, Mr. Leopard argues that: 1) there was insufficient evidence to convict him of attempting to manufacture a controlled substance in violation of 21 U.S.C. § 846 (1988); 2) the court erred in determining that he had sufficient chemicals on hand to manufacture 41.7 pounds of methamphetamine and thus inaccurately calculated his sentence under the federal sentencing guidelines; 3) a pistol and an amount of methamphetamine found in his pickup during a warrantless search should have been suppressed; and 4) the jury should have been instructed on the lesser included offense of possession of a controlled substance. We review these issues in order and affirm the district court. Sufficiency of the Evidence of Attempt to Manufacture Our standard of review on this claim is to determine whether, after reviewing the record as a whole, “ ‘[t]he evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — is sufficient if, when taken in the light most favorable to the government, a reasonable [trier of fact] could find the defendant guilty beyond a reasonable doubt.’ ” United States v. Cox, 929 F.2d 1511, 1514 (10th Cir.1991) (quoting United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir.1990)). In order to convict Mr. Leopard of attempting to manufacture methamphetamine, the government was required to prove: 1) the required criminal intent and 2) “an act or omission constituting a ‘substantial step’ toward commission of the substantive offense.” United States v. Sullivan, 919 F.2d 1403, 1429 (10th Cir.1990). Mr. Leopard argues that the evidence presented at trial did not show the required “substantial step” sufficient to constitute an attempt, and that the government offered no proof that he intended to manufacture an illegal substance. The unrebutted evidence adduced at trial established that Mr. Leopard, after preliminary discussion and planning, agreed to meet a DEA undercover agent for the purpose of purchasing chemicals and equipment necessary to the manufacture of methamphetamine. As part of their undercover operation, DEA agents loaded a U-Haul truck with the chemicals and equipment discussed by the parties and necessary to the manufacture of methamphetamine and arranged to meet Mr. Leopard to facilitate the exchange. Witnesses testified that Mr. Leopard drove into the Wal-mart parking lot in Broken Bow, Oklahoma, parked a couple of spaces away from the U-Haul truck in which the agent was waiting for him, entered the passenger side of the truck and spoke briefly with the agent. The agent and another witness testified that Mr. Leopard’s person exuded a distinctive odor associated with the manufacture of methamphetamine. When the agent exited the U-Haul and went around the back to open the back doors, Mr. Leopard accompanied him and, when asked by the agent whether the articles in the truck “would work,” Mr. Leopard indicated that they would. Rec. Vol. Ill at 36. After giving the agent $5500, one-half of the agreed on price of $11,000, Mr. Leopard took the keys to the U-Haul and the key to the padlock on the back of the U-Haul doors and began to drive out of the parking lot. He was stopped when another DEA agent activated a “kill switch" disabling the vehicle. Mr. Leopard was arrested and a subsequent search of his pockets yielded a small amount of methamphetamine and a loaded .22 magnum pistol. The testimony at trial was somewhat in conflict as to whether there were enough chemicals and equipment in the U-Haul to manufacture either methamphetamine powder or methamphetamine oil. Compare Testimony of William J. Bryant, Rec. Vol. Ill at 65-66, and William Kent Glanville, id. at 91, 96, with further testimony of William Kent Glanville at 98-99. In summary, however, the only additional ingredients identified as necessary for the production of saleable methamphetamine were heat, aluminum foil, and distillation equipment, id. at 98, 102, items that are relatively generic and easily available when compared to the extensive array of sophisticated chemicals and equipment present in the U-Haul. Mr. Leopard argues that because the seizure here was not of a “working lab” and because there was evidence that not all of the chemicals and equipment necessary to produce a finished product were present in the U-Haul, he cannot be said to have taken a “substantial step” toward manufacture. We disagree. In United States v. Johnson, 767 F.2d 673 (10th Cir.1985), this court affirmed the defendant’s conviction for attempted possession with intent to manufacture and distribute a controlled substance even though no “working lab” had yet been set up and the defendant had, in fact, been shipped a noncontrolled substance by his supplier who was cooperating with the DEA. Id. at 675-76. Citing United States v. Bunney, 705 F.2d 378 (10th Cir.1983), the court in Johnson found that the evidence was sufficient to sustain a conviction for attempt because there were not only detailed discussions concerning the purchase of a controlled substance “but also a firm agreement to buy sealed by a cash payment.” Johnson, 767 F.2d at 675-76. We hold that the evidence of Mr. Leopard’s conduct, particularly when accompanied by his payment of $5500 for the chemicals and equipment, constituted a substantial step toward the commission of the underlying offense. See id. at 675 (defendant’s request that the chemical he tried to purchase be mislabeled, his use of an. alias,. his willingness to pay an inflated price for the chemical, and his partial payment all displayed acts sufficient for conviction of attempted possession with intent to manufacture a controlled substance); cf. United States v. Joyce, 693 F.2d 838, 841-42 (8th Cir.1982) (defendant’s refusal to produce any money in payment negated the finding of a substantial step). Mr. Leopard further argues that the government failed to present any direct evidence of his intent with regard to the items in the U-Haul. Intent and knowledge, however, can be inferred from surrounding circumstances, Cox, 929 F.2d at 1514 (citing United States v. Price, 795 F.2d 61, 63 (10th Cir.1986)), and “ ‘is rarely capable of direct proof.’” Johnson, 767 F.2d at 676 (quoting United States v. Reeves, 730 F.2d 1189, 1195 (8th Cir.1984)). Viewed in the light most favorable to the government, we hold that the above described evidence, both direct and circumstantial, in addition to demonstrating a substantial step toward the manufacture of methamphetamine, is also sufficient for a reasonable jury to infer that Mr. Leopard intended to attempt the manufacture of methamphetamine and for the jury to find that fact beyond a reasonable doubt. Calculation of Sentence for Count I Mr. Leopard contends that the court, under the sentencing guidelines, erred in calculating his sentence for attempting to manufacture methamphetamine because it erroneously determined that he had sufficient chemicals and equipment to manufacture 41.7 pounds of methamphetamine. 18 U.S.C. § 3742 (1988) guides our review of sentences imposed under the sentencing guidelines and directs us to determine whether the sentence “(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range ...; or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.” United States v. Havens, 910 F.2d 703, 704 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991) (citing 18 U.S.C. § 3742(e) (1988)). We will affirm factual determinations made by the district court unless they are clearly erroneous, id. at 704, and, while we give due deference to the application of the guidelines to the facts, we will fully review the application of those guidelines for legal error. Id. Initially, Mr. Leopard again argues that, because other ingredients were necessary before a finished product could be produced, it was improper for the district court to calculate a produceable amount at all for purposes of sentencing. This issue is controlled by Havens, which holds that, even in the absence of some component parts, the trial court may properly estimate the ultimate quantity of produceable drugs. Havens, 910 F.2d at 705. Mr. Leopard’s argument that the sentencing guidelines limit the court’s ability to estimate produceable quantities to solely those instances where a “laboratory” is seized is also without merit. Application Note 2 to U.S.S.G. § 2D1.4 provides: Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. The factors listed in Note 2 are not exclusive; their consideration is permissive. There is thus no requirement limiting the judge’s authority in this area to only those situations involving a working lab. See Havens, 910 F.2d at 704-05 (produceable product estimated based on chemicals seized from a storage locker). Admission of Evidence Obtained in Search of Mr. Leopard’s Pickup As his third point of error, Mr. Leopard argues that the district court erred in denying his motion to suppress the second weapon and the additional supply of methamphetamine seized from his pickup. “When we review a denial of a motion to suppress, we accept the trial court’s findings of fact unless clearly erroneous. The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law that we review de novo.” United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989) (citations omitted), rev’d on other grounds, 931 F.2d 64 (10th Cir.1991). After Mr. Leopard was arrested, the DEA agents seized his pickup, as a vehicle used to facilitate a drug crime pursuant to 21 U.S.C. § 881(a)(4). Rec. Vol. Ill at 13. Pursuant to agency policy, agents are required to search seized vehicles to protect the agency from claims of theft or other loss of property. Id. at 17. The search of Mr. Leopard’s pickup revealed a .45 caliber pistol and a package of methamphetamine. Rec. Vol. Ill at 13. Generally, a valid warrant is required before a search may be legally carried out. McKinnell, 888 F.2d at 672. A warrant-less inventory search, however, is justified after the forfeiture of a vehicle pursuant to 21 U.S.C. § 881(a)(4). United States v. Walker, 900 F.2d 1201, 1205 (8th Cir.1990); United States v. Johnson, 572 F.2d 227, 234 (9th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1137 (1978); O’Reilly v. United States, 486 F.2d 208, 210-11 (8th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973). There was substantial evidence that the pickup was properly seized pursuant to 21 U.S.C. § 881, Rec.Vol. II at 15-16; Rec.Vol. Ill at 13, and that the later search of the pickup was an inventory search done pursuant to agency policy. Id. at 17. Mr. Leopard’s argument regarding an illegal search, therefore, is unavailing. Availability of Lesser Included Offense Instruction Mr. Leopard finally argues that he was entitled to a lesser included offense instruction on the theory of possession of a controlled substance. If the evidence is such that a rational jury could convict a defendant of a lesser offense while acquitting him of a greater offense, the defendant is entitled to a lesser included offense instruction. United States v. Swingler, 758 F.2d 477, 498 (10th Cir.1985) (citing Beck v. Alabama, 447 U.S. 625, 635, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980)). In order to receive a lesser included offense instruction, the following conditions must be present: “(1) a proper request; (2) the lesser-included-offense must consist of some, but not all, of the elements of the offense charged; (3) the element differentiating the two offenses must be a matter in dispute; and (4) a jury must be able to rationally convict the defendant of the lesser offense and acquit of the greater offense.” United States v. Joe, 831 F.2d 218, 219 (10th Cir.1987), (quoting Fitzgerald v. United States, 719 F.2d 1069 (10th Cir.1983)), cert. denied, 484 U.S. 1072, 108 S.Ct. 1043, 98 L.Ed.2d 1006 (1988). Mr. Leopard argues that the evidence at trial was equally consistent with possession of methamphetamine as it was with intent to distribute because the quantities he possessed were in user amounts. In making this argument, Mr. Leopard misstates the record. Contrary to Mr. Leopard’s characterization, the testimony of the government’s chemist was not that the baggies of methamphetamine seized from Mr. Leopard’s truck were in “user proportions,” see Brief of Appellant at 29, but rather that they were “middle or lower level distributor quantities.” Rec.Vol. Ill at 95. There was no dispute, therefore, that the amount of methamphetamine found in Mr. Leopard’s truck was a distributor quantity. Because the element differentiating the two offenses, i.e., the quantity of drugs in Mr. Leopard’s possession, was not in dispute, and because a jury could not rationally acquit Mr. Leopard of the charge of intent to distribute when there was no dispute that he possessed a distributor-type quantity of methamphetamine, a lesser included offense instruction of simple possession was unwarranted. See Swingler, 758 F.2d at 498. The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . Mr. Leopard did not move for a directed verdict of acquittal on this count or object at the close of the Government’s case based on the insufficiency of the evidence. In reviewing sufficiency of the evidence claims, plain error language is sometimes used when a defendant has not moved for a directed verdict of acquittal at the close of all the evidence. United States p. Cox, 929 F.2d 1511, 1514 (10th Cir.1991) (citations omitted). Nevertheless, "the standard actually applied is ‘essentially the same as if there had been a timely motion for acquittal’”. Id. (quoting United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir.1990)); Corbin v. United States, 253 F.2d 646, 648 (10th Cir.1958). Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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). PAVLANTOS v. GAROUFALIS. No. 1453. Circuit Court of Appeals, Tenth Circuit. April 1, 1937. Francis E. Wood, of Albuquerque, N. M. (O. N. Marron, of Albuquerque, N. M., on the brief), for appellant. J. S. Vaught and Joseph Gill, both oí Albuquerque, N. M., for appellee. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. BRATTON, Circuit Judge. This is an action by Pelagia Garoufalis against Anthony G. Pavlantos to recover on a written contract of guaranty. Plaintiff was the wife of Gus Bruskas. She sued him in the district court of Bernalillo county, N. M., for divorce, custody of their minor child, alimony, and division of community property. Pavlantos was made a party defendant in that action for the alleged reason that he was a partner of ^Bruskas in business and joint owner with him of certain property in which plaintiff claimed a community interest. Bruskas and Pavlantos filed separate answers. On November 27, 1929, the court made an announcement in the nature of findings and opinion in which it was stated that a decree of divorce in favor of plaintiff would be entered; that the residence would be awarded to plaintiff; and that the court would take charge of certain money in bank and indicated how it s,hould be disbursed. Then followed this pronouncement: “Now, under the circumstances of the case I feel that the defendant should pay a substantial amount by way of settlement, maintenance, alimony and share of community property, whatever it may be, which it is not necessary to determine. In lieu of all claims accruing to the plaintiff by reason of the marital relation, I think it advisable to provide for an installment payment over a fairly long term, which will be considered both as alimony and as adequate payment in discharge of any community share which the plaintiff might have. The court will require the defendant to pay to the plaintiff the sum of One Hundred and Twenty-five Dollars a month for a period of forty-five months. In case of remarriage of plaintiff, this would be adjusted on application of defendant.” Later that day, plaintiff and Pavlantos entered into the contract of guaranty, reading: “This Agreement, made and entered into this 29th day of November, 1929, by and between Anthony G. Pavlantos, party of the first part, and Pelagia Bruskas, party of the second part, Witnesseth: “That Whereas, in Cause No. 17,529 in the District Court of Bernalillo County, New Mexico, the second party asserts and makes a claim of interest to certain real estate in the City of Albuquerque, Bernalil-lo County, New Mexico, by reason of an alleged share or interest of Gus D. Bruskas therein, which alleged interest is detrimental to the party of the first part; and “Whereas, in the above numbered cause, a Decree is about to be given by the court to the party of the second part for the payment of One Hundred Twenty-five Dollars ($125.00) a month for a period of forty-five (45) months by Gus D. Bruskas to said party of the second part, and the pay-' ment thereof secured by a lien upon all property owned or claimed by Gus D. Brus-kas; “Now Therefore, in consideration of the premises, and the payment of One Dollar, receipt whereof is hereby acknowledged, by said party of the second part to the party of the first part, the said party of the first part hereby unconditionally guarantees to the party of the second part the payment of the said amount of One Hundred Twenty-five Dollars ($125.00) per month for forty-five months to the said party of the second part; “That in consideration of the foregoing, the party of the second part hereby waives any rights or claims she may have upon any property or fights now claimed or owned by Gus D. Bruskas or the party of-the first part, or either of them, and consents that the proposed Decree above mentioned shall provide accordingly.” Seven days thereafter, on December 6th, the court entered a final decree in the action. Plaintiff was granted a divorce and given custody of the child. The home and furnishings were awarded to her; all other property was awarded to Bruskas, and this language followed: “ * * * that by way of alimony and money for the support of said minor child, said defendant, Gus D. Bruskas, be and he hereby is ordered and directed to pay to plaintiff the sum of One Hundred Twenty-five Dollars ($125.00) per month for a period of forty-five (45) months, payable on or before the 10th day of each calendar month, beginning with the month of December, 1929, subject, however, to the right of said defendant to apply to the court for a modification of this decree with respect to said payments in event of the remarriage of plaintiff or the death of said minor child; and it being made to appear to the court that said defendant, has amply and sufficiently secured the payment of said monthly installments, it is ordered and decreed that this decree shall in nowise be held or construed as a lien or encumbrance on any property, real, personal or mixed, of the defendant, Gus D. Bruskas, whether now owned or hereafter acquired.” The court further found that no partnership existed between Bruskas and Pavlantos as alleged in the complaint, and that plaintiff take nothing against the latter. It is stipulated that the provision in the decree respecting ample and sufficient security for payment of the monthly installments was meant and intended to refer to the contract of guaranty. Bruskas made the monthly payments for ten months. He then petitioned the court to modify the decree on the ground that plaintiff had married A. Garoufalis. No action was taken on the petition until July, 1935. The court entered an order at that time in which it was found that Bruskas had fully complied with the decree until the marriage of plaintiff to Garoufalis and that he had made a fair and reasonable contribution to the support of the minor child to the time of the hearing. The original decree was modified by requiring Bruskas to pay $25 per month thereafter for the care, maintenance, and support of the child and by relieving him of all other claims or obligations for alimony and support money for the child. Plaintiff did not make demand on Pavlantos for payment of any sum prior to the entry of such modifying order. This action was subsequently instituted. Plaintiff alleged that Bruskas made ten payments of $125, but defaulted in making the remaining thirty-five. She sought judgment for that amount with interest at the rate fixed by law. The court found that the consideration for the contract was the release of plaintiff’s claim of community interest in certain real estate in the city of Albuquerque known as the Rio Theatre building; that under the terms of the agreement, Pavlantos guaranteed unconditionally payment of $125 per month for forty-five months; and that Bruskas had made twelve payments. Judgment was rendered for $4,248.75 representing thirty-three payments with accrued interest. Pavlantos appealed. There is no issue of fact. The controversy between the parties relates exclusively to the construction which should be placed upon the contract. It is a rule of universal acceptation that in the interpretation of a contract, the court may look to the language employed, the subject-matter and the surrounding circumstances; and .then avail itself of the light which the parties possessed at the time the contract was executed. United States v. Peck, 102 U.S. 64, 26 L.Ed. 46; Merriam v. United States, 107 U.S. 437, 2 S.Ct. 536, 27 L.Ed. 531; Chicago, Rock Island Railway Co. v. Denver & Rio Grande Railroad Co., 143 U.S. 596, 12 S.Ct. 479, 36 L.Ed. 277; United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731; Operators’ Oil Co. v. Barbre (C.C.A.) 65 F.(2d) 857; Catskill Nat. Bank v. Dumary, 206 N.Y. 550, 100 N.E. 422; Utica City Nat. Bank v. Gunn, 222 N.Y. 204, 118 N.E. 607; Merri-mac Chemical Co. v. Moore, 279 Mass. 147, 181 N.E. 219; Shively v. Globe Mfg. Co., 205 Iowa, 1233, 219 N.W. 266. This contract expressly referred to the decree about to be entered and disclosed that the provision awarding the monthly payments gave rise to the execution of the contract. The decree referred to the contract as constituting ample and sufficient security for the payments and it was accepted in lieu of a lien upon the property of Bruskas. Seven days intervened between the execution of the contract and entry of the decree. Manifestly, the two should be considered together in the light of the attending background in ascertaining and giving effect to the mutual intention of the parties when they executed the instrument. Coughran v. Bigelow, 164 U.S. 301, 17 S.Ct. 117, 41 L. Ed. 442; First Nat. Bank v. Spalding, 177 Cal. 217, 170 P. 407; Charlestown Five Cents Sav. Bank v. Zeff, 275 Mass. 408, 176 N.E. 191; Catskill Nat. Bank v. Dumary, supra. Compare, Doherty Research Co. v. Vickers Petroleum Co. (C.C.A.) 80 F.(2d) 809. Bruskas was not in default under the terms of the decree at the institution of this action or afterwards. That is conceded. But it is urged in support of the judgment that the contract was not made to guarantee the provisions of the decree; that instead it was an unconditional guaranty; and that Pavlantos is liable upon it entirely apart from the decree. If carried to its final analysis, the argument means that even though the decree had not been modified and Bruskas had paid the forty-five installments in full, plaintiff could recover the entire sum from Pavlantos. A contract of surety is the joint and several obligation of the principal and surety. A contract of guaranty is a promise to pay or an assumption of performance of some duty upon failure of another who is primarily obligated in the first instance. It usually is a separate undertaking in which the person primarily liable does not join. It is a collateral agreement and imparts the existence of two different obligations, one of the principal obligor and the other of the guarantor. Mellon Nat. Bank v. Citizens Bank & Trust Co. (C.C.A.8th) 88 F.(2d) 128, decided February 18, 1937; Border Nat. Bank v. American Nat. Bank (C.C. A.) 282 F. 73; First Nat. Bank v. Nakdi-men, 111 Ark. 223, 163 S.W. 785, Ann.Cas. 1916A, 968; Saint v. Wheeler & Wilson Mfg. Co., 95 Ala. 362, 10 So. 539, 36 Am. St.Rep. 210; News-Times Pub. Co. v. Doolittle, 51 Colo. 386, 118 P. 974; Cowan v. Roberts, 134 N.C. 415, 46 S.E. 979, 65 L. R.A. 729, 101 Am.St.Rep. 845; Wachovia Bank & Trust Co. v. Clifton, 203 N.C. 483, 166 S.E. 334, 84 A.L.R. 725; McGee v. F. W. Poe Mfg. Co., 176 S.C. 288, 180 S.E. 48, 99 A.L.R. 1468; Arnold, Suretyship & Guaranty, 14. Contracts of guaranty are divided into two kinds.' One is absolute or unconditional and the other is conditional. An absolute guaranty is an unconditional undertaking on the part of the guarantor that the person primarily obligated will make payment or will perform, and such a guarantor is liable immediately upon default of the principal without notice. A conditional guaranty is an undertaking to pay or perform if payment or performance cannot be obtained from the principal obligor by reasonable diligence. Beardsley v. Hawes, 71 Conn. 39, 40 A. 1043; Hubbard v. Haley, 96 Wis. 578, 71 N.W. 1036; Cownie v. Dodd, 167 Iowa, 627, 149 N.W. 904; Leftkovitz v. First Nat. Bank, 152 Ala. 521, 44 So. 613; Great Western Printing Co. v. Belcher, 127 Mo.App. 133, 104 S.W. 894. An absolute guaranty, unlike a conditional one, casts no duty upon the creditor or holder of the obligation to attempt collection from the principal debtor before looking to the guarantor. Johnson v. Charles D. Norton Co. (C.C.A.) 159 F. 361; Miller v. Northern Brewery Co. (D.C.) 242 F. 164; Karraker v. Ernest (D.C.) 4 F.(2d) 404; Welch v. Walsh, 177 Mass. 555, 59 N.E. 440, 52 L.R.A. 782, 83 Am.St.Rep. 302; McMurray v. Noyes, 72 N.Y. 523, 28 Am.Rep. 180; Sherman, Clay & Co. v. Turner, 164 Wash. 257, 2 P.(2d) 688. Both presuppose default by the principal. The contract was an absolute guaranty as distinguished from a conditional one. By its terms Pavlantos guaranteed payment of the forty-five installments specified in the decree for which Bruskas was primarily liable. Plaintiff did not surrender her community interest in the property in exchange for the guaranty. She merely waived her lien upon the property as security for such payments and accepted the guaranty as substituted security. The payments fixed in the decree were subject to reduction or termination on application in case of remarriage, and the guaranty necessarily was given subject to the same contingency. The order modifying the decree extinguished the ' payments and relieved Bruskas of further liability for them. That ended the liability of the guarantor for them. The judgment is reversed, and the cause remanded. 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_lcdisposition	K	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. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. v. ILLINOIS et al. No. 12. Argued November 12, 1957. Decided January 13, 1958. R. K. Merrill argued the cause for appellant in No. 12. With him on the brief were W. J. Quinn and Edwin R. Eckersall. Solicitor General Rankin submitted on brief for the United States, appellant in No. 27. Charlie H. Johns, Jr. argued the cause for the Interstate Commerce Commission, appellant in No. 28. With him on the brief was Robert W. Ginnane. Harry R. Begley, Special Assistant Attorney General, argued the cause for the State of Illinois and the Illinois Commerce Commission, appellees. With him on the brief were Latham Castle, Attorney General, and Elmer M. Walsh, Jr., Assistant Attorney General. S. Ashley Guthrie argued the cause for the Milwaukee Road Commuters’ Association, appellee. With him on the brief were Henry F. Tenney and Francis D. Fisher. Together with No. 27, United States v. Illinois et al., and No. 28, Interstate Commerce Commission v. Illinois et al., also on appeals from the same Court. Mr. Justice Brennan delivered the opinion of the Court. The State of Illinois, the Illinois Commerce Commission, and the Milwaukee Road Commuters’ Association, aggrieved by an order of the Interstate Commerce Commission fixing intrastate passenger fares for the Milwaukee Road’s Chicago suburban commuter service higher than the fares authorized by the State Commission, brought this action in the District Court for the Northern District of Illinois, Eastern Division, seeking relief under 28 U. S. C. § 1336. The ICC order, 297 I. C. C. 353, was made under 49 U. S. C. § 13 (4), which authorizes the ICC to prescribe intrastate fares if it finds that “. . . any such . . . [existing intrastate] fare . . . causes . . . any undue, unreasonable, or unjust discrimination against interstate . . . commerce.” The three-judge District Court set aside the order, enjoined its enforcement, and remanded the case to the ICC for further proceedings. 146 F. Supp. 195. The District Court held, inter alia, that the ICC failed to make findings appropriate to show that the existing fares caused undue, unreasonable or unjust discrimination against interstate commerce. The judgment was appealed under 28 U. S. C. § 1253. We noted probable jurisdiction, 352 U. S. 939. The ICC found that the Milwaukee Road’s 1954 passenger revenues from the Chicago suburban commuter service fell short by $306,038 of meeting the out-of-pocket cost of the service. This was the basis of the conclusion that the existing intrastate fares caused undue discrimination against interstate commerce. To remove this discrimination the ICC prescribed fares to produce $383,000 additional annual revenue, enough to eliminate the determined out-of-pocket loss and to allow $77,000 annually as a contribution to indirect costs and taxes. The question for our decision is whether the District Court properly set aside the ICC order as void for lack of findings necessary to support an order under § 13 (4). The Chicago suburban commuter service, except for a relatively insignificant exception mentioned below, is entirely an intrastate service. It is provided in two directions from Chicago’s Union Station. One direction, wholly within Illinois, is west from Chicago some 37 route miles to Elgin, Illinois. The other direction is north from Chicago to Walworth, Wisconsin; however, 62 of the 74 route miles in that direction, and 24 of the 26 station stops, are located within Illinois. Total 1954 passenger revenues from this service were $1,796,231 from 4,869,064 passengers. Commuters traveling on commutation and multiple-ride tickets numbered 3,910,526 of this total and accounted for $1,374,261 of the revenue. Commuter fares of most of the railroads providing commuter service in the Chicago area have been determined, at least since 1950, in joint hearings conducted by the ICC and the State Commission under 49 U. S. C. § 13 (3). 297 I. C. C. 353, 354. On July 24, 1952, however, the Milwaukee Road, instead of filing petitions or schedules with both Commissions, filed a petition with the State Commission only requesting “authority to discontinue all off-peak Chicago suburban passenger trains and'consolidate certain peak-hour trains and also to increase one-way, round-trip and commutation fares to such extent as will after taking into consideration the economy effected by such discontinuances and consolidation of trains, give respondent sufficient revenues to permit operation of the Chicago 'suburban service without an out-of-pocket loss.” 297 I. C. C., at 355. The State Commission did not act on the application until 1954. Meanwhile the Milwaukee Road changed the suburban service from a steam to a diesel operation. The State Commission found that the cost savings effected by this change eliminated the out-of-pocket loss and, on November 10, 1954, denied the application. The Milwaukee Road thereupon, in February 1955, petitioned the ICC for relief under § 13 (4). This case presents once again the problem of adjusting state and federal interests in the regulation of intrastate rates. These intrastate rates are primarily the State’s concern and federal power is dominant “only so far as necessary to alter rates which injuriously affect interstate transportation.” North Carolina v. United States, 325 U. S. 507, 511. Thus, whenever this federal power is exerted within what would otherwise be the domain of state power, the justification for its exercise must “clearly appear.” Florida v. United States, 282 U. S. 194, 212. The statute provides a practical method of minimizing the inevitable irritations inherent in the conflict by requiring the ICC to notify the State whenever there is brought before it any fare imposed by state authority. In addition, the ICC may confer with the state regulatory authority, or may hold joint hearings with the state agency, when the State’s rate-making authority may be affected by the action taken by the ICC. 49 U. S. C. § 13 (3). The occasion for the exercise of the federal power asserted by § 13 (4) is the necessity for effecting the required contribution by intrastate traffic of its proportionate share of the revenues necessary to pay a carrier’s operating cost and to yield a fair return. When intrastate revenues fall short of producing their fair proportionate share of required total revenues, they work an undue discrimination against interstate commerce, and the ICC may remove the discrimination by fixing intrastate rates high enough reasonably to protect interstate commerce. Illinois Commerce Comm’n v. United States, 292 U. S. 474, 479; Wisconsin R. Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563, 586; United States v. Louisiana, 290 U. S. 70, 75. In determining whether an undue revenue discrimination against interstate commerce is caused by intrastate rates, the ICC may consider “among other things, the need, in the public interest, of adequate and efficient railway transportation service and the need of revenues sufficient to sustain such service,” a standard written into 49 U. S. C. § 15a (2). King v. United States, 344 U. S. 254, 264. No formal requirements are prescribed for the findings to be made by the ICC under § 13 (4). United States v. Louisiana, 290 U. S. 70, 80. Reasonable determinations suffice. Florida v. United States, 292 U. S. 1, 9. But the justification for the exercise of this exceptional federal power to interfere with intrastate rates must be made definitely and clearly apparent. Florida v. United States, 282 U. S. 194, 212. In the instant case the ICC interfered with suburban commuter rates — intrastate rates peculiarly localized in impact upon the Chicago suburban community. In substance, the ICC found that because this single segment of the Milwaukee Road’s intrastate operations in Illinois did not meet out-of-pocket costs, there was an undue discrimination against the road’s interstate operations, without regard to the contribution of other Illinois intrastate revenues, freight or passenger, concerning which both the record and the findings are entirely silent. We think this is a case where the ICC cannot be sustained in altering intrastate rates merely because the Chicago suburban commuter traffic — of the Milwaukee Road’s total intrastate Illinois traffic, freight and passenger — is not remunerative or reasonably compensatory. Cf. Florida v. United States, 282 U. S. 194; North Carolina v. United States, 325 U. S. 507. The limited and exceptional federal power asserted by § 13 (4) over intrastate rates must be exercised with “scrupulous regard for maintaining the [primary] power of the state in this field.” North Carolina v. United States, 325 U. S. 507, 511. It is of course desirable that each particular intrastate service should as nearly as may be pay its own way and return a profit — but the State Commission, not the ICC, has the responsibility in the first instance to achieve that desired end. Passenger deficits have become chronic in the railroad industry and it has become necessary to make up these deficits from more remunerative services. The ICC has recognized this practical reality of today’s railroading and has changed its rate-fixing policy so that if interstate passenger service inevitably and inescapably cannot bear its direct costs and its share of joint or indirect costs, the ICC feels compelled in a general rate case to take the passenger deficit into account in the adjustment of interstate freight rates and charges. King v. United States, 344 U. S. 254, 261. An equally broad power must be conceded to a state commission in the exercise of its primary authority to prescribe and adjust intrastate rates. In view of that policy, we do not think that the deficit from this single commuter operation can fairly be adjudged to work an undue discrimination against the Milwaukee Road’s interstate operations without findings which take the deficit into account in the light of the carrier’s other intrastate revenues from Illinois traffic, freight and passenger. The basic objective of § 13 (4), applied in the light of § 15a (2) to this case, is to prevent a discrimination against the carrier’s interstate traffic which would result from saddling that traffic with an undue burden of providing intrastate services. A fair picture of the intrastate operation, and whether the intrastate traffic unduly discriminates against interstate traffic, is not shown, in this case, by limiting consideration to the particular commuter service in disregard of the revenue contributed by the other intrastate services. A requirement for findings which reflect the commuter service deficit in the totality of intrastate revenues is not a departure from previous holdings of this Court. The precise situation presented by this case has not heretofore been considered by the Court. The previous cases involving Commission orders increasing intrastate rates in the interest of the carrier’s revenue (as distinguished from cases of discrimination against particular persons and localities, see Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342) involved statewide orders raising intrastate rates. In passenger fare cases, ICC orders were sustained on a showing that following general increases in interstate passenger rates, state commissions refused to increase intrastate passenger rates to the same level for what were essentially identical services. Wiscon sin R. Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563; New York v. United States, 257 U. S. 591. It was held that the state passenger rates in that circumstance were not producing their fair proportionate share. In North Carolina v. United States, 325 U. S. 507, also a passenger fare case, the ICC order was not sustained because the findings were held to be insufficient. Nonpassenger fare cases in which ICC orders raising intrastate rates were sustained were United States v. Louisiana, 290 U. S. 70; Florida v. United States, 292 U. S. 1; and King v. United States, 344 U. S. 254. The order was not sustained, however, in an earlier Florida case, Florida v. United States, 282 U. S. 194. The only case ostensibly based upon a revenue discrimination caused by a local operation was not a passenger fare case. Illinois Commerce Comm’n v. United States, 292 U. S. 474. Basically the discrimination there complained of, however, was a persons-and-locality discrimination against interstate shippers. It should also be noted that in King v. United States, supra, the Court adverted to those very factors among the ICC’s findings whose absence in the present case we find to be a fatal defect. The Court there emphasized the ICC finding that the entire intrastate traffic, freight and passenger, constituted a revenue drain upon the carrier’s revenues from interstate traffic. Since the Commission has not in this case found whether or not the commuter rates, viewed in the light of the Illinois intrastate operation as a whole, constitute an undue revenue discrimination against the Milwaukee Road’s interstate operations, the judgment of the District Court in remanding the case to the Commission for further consideration must be affirmed. The District Court also held that the ICC erred in considering evidence which was not presented by the Milwaukee Road to the State Commission. The evidence in question concerned certain depreciation and maintenance-of-way expenses totaling $258,172, which the ICC took into account in computing out-of-pocket costs. The District Court said: “If different evidence is to be offered or a different basis of fares is to be urged before the interstate commission, the state commission should have been given a chance to fix fares on the same evidence and the same basis. “Where a railroad seeks the fixing of higher intrastate rates by the interstate commission after failing in such endeavor before a state commission, § 13 (4) does not contemplate that the state commission is to be considered only a way station in a journey to the interstate commission.” 146 F. Supp. 195, 201, 202. This holding in effect restricts the ICC in decisions under § 13 (4) to the identical evidence presented by the railroad to the State Commission. So to restrict the ICC’s consideration as to whether intrastate rates work an undue discrimination against interstate commerce might seriously interfere with the Commission’s duty to remove the discrimination to protect the exclusive federal domain of interstate commerce. It is contrary to this Court’s holding in Florida v. United States, 282 U. S. 194. There the State Commission had not affirmatively prescribed the existing rates which the ICC increased. It was urged that until the State Commission did so § 13 (4) granted no power to the ICC to prescribe higher rates. This Court rejected this contention, saying “To hold . . . that there can be no adjustment of intrastate rates by the Interstate Commerce Commission so far as may be needed to protect interstate commerce until the State itself has first 'sat in judgment on the issue of the lawfulness of those intrastate rates’ would be to impose a limitation not required by the terms of the statute and repugnant to the grant of authority.” Id., at 210. In this case the ICC might more wisely have arranged for joint hearings under § 13 (3) or have deferred action pending an opportunity for the State Commission to consider this evidence. However, nothing in the statute compels either course or denies the ICC the power to determine the question presented by the railroad’s petition, whatever may have been the evidence presented before the State Commission. See North Carolina v. United States, 128 F. Supp. 718, affirmed, 350 U. S. 805; Illinois v. United States, 101 F. Supp. 36, 47, affirmed, 342 U. S. 930. Finally, it is argued that the District Court erred in setting aside so much of the ICC order as authorized an increase in the interstate fares to the two Wisconsin points. We believe, however, that these rates are so interwoven with and so closely bound to the intrastate rates that a proper disposition of this case reasonably requires that the Commission reconsider them as part of its reconsideration of the entire Chicago suburban commuter service. The only reason why the ICC increased the interstate rates was to make them conform to the increased intrastate rates. Paragraph 3 of the District Court judgment dated June 14, 1956, is modified to provide that the remand to the ICC shall be for further proceedings not inconsistent with this opinion. It is so ordered. 24 Stat. 383, as amended, 41 Stat. 484, 49 U. S. C. § 13 (4): “Whenever in any such investigation the commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.” The injunction was stayed pending the hearing of the appeal to this Court. The excess fares are being impounded under a provision of the stay order providing for their refund to the persons who paid them in the event the judgment appealed from is affirmed. The Milwaukee Road is the appellant in No. 12. The United States is the appellant in No. 27. The ICC is the appellant in No. 28. Bach appeals from the particular provisions of the judgment by which it is aggrieved. The interstate fares to the two Wisconsin points were also raised in this proceeding by an ICC order entered November 21, 1955, and Order No. 26550, Passenger Fares and Surcharges, 214 I. C. C. 174, was modified so as to permit the rates to be made effective. No affirmative order raising the intrastate rates was made, however, until March 2, 1956. The ICC report allowed the Milwaukee Road and the Illinois Commerce Commission 60 days in which to adjust the intrastate rates on the bases prescribed in the report. Failing such adjustment the order of March 2, 1956, prescribing the intrastate rates was entered and Order No. 11703, Intrastate Rates Within Illinois, 59 I. C. C. 350, was modified to permit the Milwaukee Road to make the intrastate rates effective. 24 Stat. 383, as amended, 41 Stat. 484, 49 U. S. C. § 13 (3): “Whenever in any investigation under the provisions of this chapter, or in any investigation instituted upon petition of the carrier concerned, which petition is authorized to be filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by authority of any State, the commission, before proceeding to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this chapter or chapter 12 of this title with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the commission; and to that end is authorized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the commission. The commission is also authorized to avail itself of the cooperation, services, records, and facilities of such State authorities in the enforcement of any provision of this chapter or chapter 12 of this title.” Wisconsin R. Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563, 586. “The effective operation of the [Interstate Commerce] act will reasonably and justly require that intrastate traffic should pay a fair proportionate share of the cost of maintaining an adequate railway system.” This would seem to be particularly required here in light of the Commission’s recognition “that the deficit from the [Milwaukee Road’s] total passenger operations is relatively greater than from its suburban operations.” 297 I. C. C. 353, 359. The Commission found that the Milwaukee Road earned in 1954 from its freight operations $37,293,050, and suffered a deficit from all passenger operations of $22,824,532, resulting in a net railway operating income of $14,568,518. This represented a return of approximately 2%. We agree with the District Court that that portion of the prescribed increases designed to produce $77,000 annually as a contribution to indirect costs and taxes is not based upon adequate findings. There is no finding of the total of indirect costs and taxes to which contribution is to be made, nor any finding from which we may infer how the ICC derived its conclusion that a $77,000 contribution was fair. It is axiomatic that to know whether something is a fair proportionate part of something else, we must be told what the something else is. On the other hand we cannot agree with the District Court that there was not support in the evidence for the ICC’s finding that the prescribed rates would be just and reasonable for the future. The ICC did not rely solely upon the comparison with the similar fares of the Northwestern, for there was ample other evidence in the record to sustain their findings. But the factors which determine the reasonableness of a rate are so different from the factors which determine what is a fair proportionate share of a carrier’s total income that a finding of the reasonableness of the rates prescribed does not embrace all the findings necessary to support the exercise of the § 13 (4) power. 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_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SOUTHWEST OFFSET, INC., Plaintiff-Appellant, v. HUDCO PUBLISHING CO., INC., Defendant-Appellee. No. 79-3071 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 23, 1980. Jack Hill, Dallas, Tex., for plaintiff-appellant. Freytag, Marshall, Beneke, Laforce, Rubinstein & Stutzman, Stephen L. Hubbard, Karl L. Rubinstein, Dallas Tex., for defendant-appellee. Before GEE, HENDERSON and HATCHETT, Circuit Judges. Fed.R.App.P. 34(a); 5th Cir. R. 18. PER CURIAM: Southwest Offset, Inc. (“Southwest”), a Texas contract printer, appeals the dismissal for want of jurisdiction of its diversity suit on a series of contracts against Hudco Publishing Company, Inc. (“Hudco”), an Alabama publisher of suburban telephone directories operating in Alabama and Mississippi only. After we remanded for clarification of its findings of fact, the district court found, among other things, that Southwest, a Texas corporation, solicited Hudco’s business through Southwest’s sales representative in Alabama. After the initial order was placed with the sales representative, Hudco placed subsequent orders, approximately eight, either in writing or over the phone. No one associated with Hudco ever came to Texas in connection with the orders placed with Southwest. Payment for the orders was to be made at Southwest’s office in Dallas, Texas, and Hudco did mail some payments for these orders to Dallas. As a necessary part of Southwest’s printing process, Hudco mailed to Southwest’s office camera-ready copy of the telephone directories. Southwest, after preparing printing plates from the camera-ready copy, would print proofs and send them to Hudco for corrections. After Hudco examined the proofs, it would return corrected proofs to Southwest. The books would then be printed and shipped to Hudco F.O.B. Dallas. All the directories that are the subject matter of this suit were printed in Texas, and Hudco knew from the outset that Southwest’s only printing plant was located in Texas. On the basis of the above facts, the court below concluded that personal jurisdiction was lacking over defendant, although the literal provisions of Texas’ long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b, were satisfied. The trial court held: It would not be fair and reasonable to require the Defendant to come into Texas and defend this action considering the lack of purposeful activity by Defendant in Texas, the relative convenience of the parties (Defendant only doing business in two southeastern states balanced against the larger operations of Plaintiff which is soliciting orders throughout the United States), and the lack of minimum contacts with Texas. Moreover, Defendant has not purposefully availed itself of the privilege of conducting activity in Texas, and thus has not invoked the benefits and protections of its laws. In so holding, the trial court rejected the applicability of Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974), and considered U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), to be controlling. We disagree and reverse. As an initial matter, we reaffirm the principle that, in the determination of whether a foreign corporation should be required to defend itself in a suit in Texas arising out of a contract between it and a Texas corporation, each case must be decided on its own facts. See Product Promotions, Inc. v. Cousteau, 495 F.2d at 499; see also Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Nonetheless, guiding principles may be found in the facts of other cases. In Cousteau, for example, a foreign corporation (CEMA) entered into a contract with a Texas corporation to test a device designed to attract fish. The contract was held to have been made in Texas, see 495 F.2d at 495, and under its terms, CEMA was to test the device and prepare a report and a film for television and other advertising promotions. The film and reports were sent to Dallas, and although CEMA had performed no physical act within the state, its activities in sending the report and film to Texas were adequate to support an inference of an “affirmative, purposeful decision ... to avail itself of the privilege of conducting some business in Texas.” Id. at 496. By contrast, the parties in U-Anchor Advertising, Inc. v. Burt, supra, entered into a single written contract in Oklahoma, the contract having been solicited by a salesman in Oklahoma for U-Anchor. Defendant Burt agreed to pay U-Anchor $80 a month at its office in Amarillo, Texas, and U-Anchor constructed the signs in Amarillo and erected them in Oklahoma. Aside from mailing monthly payment checks to U-Anchor in Amarillo, Burt had no other contact with Texas. The Texas Supreme Court held that Burt’s contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas. . . . Simply stated, Burt was a passive customer of a Texas corporation who neither sought, initiated, nor profited from his single and fortuitous contact with Texas. 553 S.W.2d at 763. Since Burt’s only Texas activity consisted of the preparation of and mailing of checks from his place of business in Oklahoma to Amarillo, the court found that the exercise of in personam jurisdiction over him would be offensive to due process. We find the case at bar to be controlled by Cousteau, not by U-Anchor, for several reasons. First, Texas is probably the place of most of the contracts, since all except the first of Hudco’s offers to print were accepted by Southwest in Texas. See Cousteau, 495 F.2d at 495. This court has already held, in its remand order in this case, that the contracts are governed by Texas law. See also id. at n.20. While Burt might have expected that the contract he signed in Oklahoma with U-Anchor might be enforced according to Oklahoma law, see 553 S.W.2d at 763, Hudco, like the defendant in Cousteau, could expect that Texas law might govern the enforcement of their contracts, since a substantial part of the expected performance would occur in Texas. Second, Hudco, unlike Burt, was no mere passive customer of a Texas corporation. Hudco repeatedly placed orders with the Texas corporation for the “manufacture” of telephone directories, from which Hudco expected to profit, and Hudco several times mailed camera-ready copy and proofs to Texas in order to facilitate the manufacturing process. Thus, Hudco did considerably more than Burt, whose “single and fortuitous,” 553 S.W.2d at 763, Texas contact consisted of mailing payments to an office in Amarillo. Rather, Hudco more resembles defendant CEMA in Cousteau, who was required to send certain items to Texas under the contract. Hudco does not argue that Southwest could have manufactured its product without the camera-ready copy. Thus, the sending of the copy to Texas was a necessary part of Hudco’s contract performance. Third, even if we were to assume arguendo that the facts of this case were closer to those found in U-Anchor, we would not be bound by that court’s holding on lack of minimum contacts. This is so because the Texas Supreme Court’s holding in U-Anchor was predicated on the due process clause of the United States Constitution, and the federal courts are not bound by state court determinations of what the Constitution requires. We are, however, bound by the precedent of our own holding in Cousteau. Finally, the district court’s holding that “it would be more burdensome for Defendant to come to Texas than for Plaintiff who solicited the contract in Alabama to go to Alabama and bring suit” is not supported by the evidence. We note that our decisions establish a two-pronged standard for determining whether constitutional due process requirements have been met. Defendant must have some minimum contacts with the state resulting from an affirmative act or acts on its part, and it must not be unfair or unreasonable to require the nonresident defendant to defend the suit in the forum. See Cousteau, 495 F.2d at 494, 497-98. The second prong, or “fairness” factor, requires the court to consider, among other things, the interest of the state in providing a forum for the suit, the relative conveniences and inconveniences to the parties, and the basic equities. Id. at 498. Southwest, as the party seeking to invoke the jurisdiction of the federal court, had the burden of establishing the district court’s jurisdiction over Hudco, id. at 490, and we believe that Southwest has carried that burden. It has proved that the contracts were made in Texas and would be governed by Texas law and thus that Texas has an interest in providing a forum for this suit. See id. at 498 and n.27. Notwithstanding the trial court’s holding, it would be just as inconvenient for Southwest to litigate in Alabama as it would be for Hudco to litigate in Texas. The fact that Southwest maintained a sales force in Alabama tells us nothing about its ability to prosecute a suit there. Thus, the convenience factor is a “stand-off.” See id. at 498. And, as in Cousteau, Hudco has pointed to no particular inequity that would result if a court in Texas exercises jurisdiction over its person in this suit. Indeed, there seems to be more purposeful activity in Texas by Hudco than by CEMA, a French corporation over which this court in Cousteau approved the exercise of in personam jurisdiction in Texas. In light of the facts and our precedent, we could hardly hold that it would be unfair or unreasonable to require Hudco to defend against this suit in a Texas court. REVERSED and REMANDED. . See note 2, infra. . In our remand order, we indicated that we were unable to determine from the trial court’s findings whether the suit involved one omnibus agreement or a series of contracts. The trial court on remand used the term “contracts” several times and made no finding regarding any overall agreement calling for several printing jobs. Thus, we will treat each printing order as a separate contract. . Art. 2031b reads, in pertinent part: Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State. The Texas courts construe this provision as reaching “as far as the federal constitutional requirements of due process will permit.” U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977). Since we agree with the trial court’s holding that the Texas statutory requirements are met, we must proceed to inquire into whether the exercise of in personam jurisdiction over Hudco by a Texas federal court sitting in diversity satisfies the requirements of the due process clause of the United States Constitution. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir. 1974). . Indeed, the testing of the fish call was carried out halfway around the globe, off the coasts of France and Monaco. Id. at 488. . We realize that if the trial court is correct in its implicit holding that a Texas state court would not exercise in personam jurisdiction over Hudco, on the authority of U-Ánchor, this case will have a different result than if filed in state court. But Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny have not removed from the shoulders of federal judges the onus of authoritatively interpreting our federal Constitution when that document’s meaning must be found. This and like ironies, see, e. g., Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), are unavoidable consequences of our dual court system. . See id. This language in Cousteau appears to place the burden of proving the relative equities at least partially on defendant, despite the court’s earlier holding placing the burden of proving jurisdiction on plaintiff. This appears a fair allocation, since defendant would have unique knowledge of any particular hardships making it inequitable for it to defend in a foreign forum. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_weightev	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". Lucy J. BUCKLEY, Plaintiff, Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Appellee. No. 85-1346. United States Court of Appeals, First Circuit. Argued Sept. 6, 1985. Decided Dec. 19, 1985. Robert V. Lizza with whom Stephen A. Hopkins and Sherburne, Powers & Need-ham, . Boston, Mass., were on brief for plaintiff, appellant. Peter M. Durney with whom Cornell & Gollub, Boston, Mass., was on brief for defendant, appellee. Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge and CEREZO, District Judge. Of the District of Puerto Rico, sitting by designation. CEREZO, District Judge. Plaintiff appeals from the judgment dismissing her products liability suit as time barred. Applying Massachusetts’ three-year statute of limitations period for this type of case, Mass. G.L. c. 260, sec. 2A and c. 106, sec. 2-318, and that state's particular criteria of accrual for inherently unknowable wrongs, see Fidler v. Eastman Kodak Co., 714 F.2d 192, 196-99 (1st Cir.1983), the district court concluded that once plaintiff had knowledge of her injuries and the fact that contact with the steering wheel and engine was involved in causing her injuries, she was on notice that the design of her 1979 Honda may have been a cause of her injury and had the responsibility to investigate and determine whether she had a claim against defendant. We review the factual setting in light of the requirements of Fed.R.Civ.P. 56 and its case law. On March 2, 1980, plaintiff’s 1979 Honda Civic collided at an approximate speed of fifteen miles per hour with a Buick sedan. The front end of her car bore the brunt of the impact. Despite the low speed, she was seriously injured when the front end of her car was pushed back causing the steering column to strike her chest and the engine to enter the driver’s compartment. In April 1981, plaintiff filed an action in state court against the driver of the Buick. That case was settled for the full value of the insurance policy. Three years later, on March 2, 1984, she sued American Honda Motor Co., Inc., the distributor of her 1979 Honda Civic, for breach of warranty, negligent design, failure to warn of design deficiencies and strict liability. The alleged defect was the inability of the vehicle to withstand normal crash impact in a safe manner by reducing the backward movement of the steering column and the engine. A timetable for discovery and motions was established to explore the issue of whether the products liability claims were time barred. Defendant requested summary judgment contending that the date of the accident set the time for accrual. Plaintiff argued that until June of 1983, when she read a magazine article which described the results of crash testing the 1980 Honda Civic, she had no warning or other information which could have given her notice that her injuries were far more serious because of design deficiencies in her 1979 Honda Civic. After further investigation, her attorney found a November 1981 report prepared by the MGA Research Corp. for the National Highway Traffic Safety Administration (NHTSA) which stated that significant reduction of potential injury by front end impact to front seat passengers had been achieved by changing the steering column and seat belts in the Honda Civic 1981 model as compared to the 1980 model, which was similar to the 1979 model. Plaintiff argues on appeal that there were issues of fact which barred summary disposition of this case and that the application of Massachusetts law was erroneous. In an attempt to preclude defendant from using the doctrine that sets accrual at the time the claimant has reasonable notice of the injury, plaintiff asks that we infer that Honda deliberately withheld information concerning the crash characteristics of the 1979 and 1980 models of the Honda Civic which it must have known prior to the time she bought her car in February of 1980. The basis for this inference is the assumption that prior testing had to be done before the NHTSA report was issued. Appellant suggests that had she been given more time for discovery she might have come up with something to buttress her estoppel argument. Her position on the application of Massachusetts accrual criteria is that, even assuming that the date on which she read the magazine article were irrelevant for accrual purposes, there is still no way she could have reasonably discovered the causal relationship between her injuries and the design deficiencies of her car prior to publication of the November 1981 report. She claims that a products liability claim against the Honda manufacturer or distributor, without the benefit of this particular report, would have been speculative and would possibly have violated federal pleading requirements. Although appellant contends, in general terms, that there are issues of fact that precluded summary dismissal, she has pointed to none which meet the rule’s genuineness and materiality requirements. See Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). The suggestion that a genuine controversy exists as to whether defendant is estopped from resorting to the limitations defense because of the possibility of deliberately withholding information is based on groundless assumptions. The “favorable inferences” generally afforded parties opposing summary judgment must be reasonable and based on factual elements, not on conjecture, id., see White v. Hearst Corp., 669 F.2d 14, 19 (1st Cir.1982). The bare hope that additional discovery will provide the factual support that past discovery has failed to muster is insufficient to thrust aside a well-grounded motion for summary judgment. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 820 (1st Cir.1980). The district court did not commit reversible error in its application of Rule 56 criteria. Appellant admits that neither she nor her attorney ever undertook any investigation prior to the summer of 1983 regarding the automobile’s design and its possible link to her injuries. At the time of the accident she was aware that her chest injuries were caused by the backward movement of the steering wheel and column and that she hurt her right knee when the engine entered the passenger compartment. The circumstances surrounding the crash, i.e., the low speed, the extent of her car’s damage despite the relatively light impact, the fact that contact with the steering wheel and the engine caused her injuries, were all known to her at the time of the accident. Even assuming the correctnéss of plaintiff’s conclusory, albeit unrebutted, statement that there were no published reports similar to the NHTSA report prior to November 1981, the circumstances surrounding the collision and the state of the law at the time were sufficient indicia to place her on notice that design deficiencies were a contributing cause of her injuries and to trigger an inquiry into defendant’s potential liability. See Fidler, 714 F.2d at 196-99. As plaintiff herself points out, at the time of the accident the general doctrine that automobile manufacturers could be found liable if their cars were not crash-worthy had long been established by federal case law, see, e.g., Larsen v. General Motors, 391 F.2d 495 (8th Cir.1968) (excessive backward thrust of the steering column in General Motors’ Corvair model upon front end impact), and by the Supreme Judicial Court of Massachusetts, see Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978). It cannot seriously be argued that the 1981 NHTSA report was a scientific “breakthrough,” given the existence of the earlier doctrine that automobiles in general, regardless of the make, could be defective if not built to respond to a crash situation in a reasonably safe manner. This theory of causation was well known at the time of the accident in the legal and scientific communities. The fact that there was no specific report on plaintiff’s particular car model is not indicative of such a lack of adequate scientific knowledge which would make plaintiff’s theory of causation “not sufficiently understood to support a legal claim.” Fidler, 714 F.2d at 200. She could have conducted a routine investigation by inquiring of knowledgeable individuals who did not necessarily have to be NHTSA car design engineers. There is nothing in the record from which to' show that a reasonable and effective preliminary investigation would have been prohibitively costly, or that such an investigation would have been futile. The defect which made the model “unerashworthy” in the present case, the alleged lack of collapsibility of the 1980 model’s steering column, could also have been ascertained through regular discovery after filing the case. It would be unreasonable to require litigants to file complaints only after the completion of all testing has established the definite and exact cause of their injuries. Given the existence of the doctrine of crashworthiness at the time of the accident and the circumstances surrounding this collision, we find that appellant had enough data to reasonably conclude that the defective design of defendant’s product was a likely contributing cause to the seriousness of her serious injuries. From that moment on she had the duty to make inquiry as to whether or not she had a valid legal claim to bring before the courts. The judgment of the district court is Affirmed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casesource	029	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. ROCKWELL INTERNATIONAL CORP. et al. v. UNITED STATES et al. No. 05-1272. Argued December 5, 2006 Decided March 27, 2007 Scaua, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, and Auto, JJ., joined. Stevens, J.', filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 479. Breyer, J., took no part in the consideration or decision of the case. Maureen E. Mahoney argued the cause for petitioners. With her on the briefs were J. Scott Ballenger, Barry J. Blonien, Christopher J. Koenigs, and Michael B. Carroll. Maria T. Vullo argued the cause for respondent Stone. With her on the brief were Evan Norris and Hartley David Alley. Malcolm L. Stewart argued the cause for respondent United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Douglas N. Letter, and Peter R. Maier Briefs of amici curiae urging reversal were filed for the American Hospital Association et al. by Jonathan L. Diesenhaus and Catherine E. Stetson; for BP America Production Co. et al. by Donald B. Ayer, Michael P. Graham, and Daniel M. McClure; for the Chamber of Commerce of the United States of America et al. by Herbert L. Fenster, Lawrence S. Ebner, Mark R. Troy, Robin S. Conrad, and Amar D. Sarwal; for the National Defense Industrial Association by Alan A. Pemberton and Sarah L. Wilson; and for the Washington Legal Foundation et al. -by Alan I. Horowitz, Robert K. Huffman, Peter B. Hutt II, Daniel J. Popeo, and Paul D. Kamenar. Briefs of amici curiae urging affirmance were filed for the Taxpayers Against Fraud Education Fund et al. by David C. Frederick, James W. Moorman, and Marissa M. Tirona; and for Patricia Haight et al. by Jeremy L. Friedman. Briefs of amici curiae were filed for Comstock Resources, Inc., by William Scott Hastings and John Robert Beatty; and for Senator Charles E. Grassley by John E. Clark. Justice Scalia delivered the opinion of the Court. The False Claims Act, 31 U. S. C. §§ 3729-3733, eliminates federal-court jurisdiction over actions under § 3730 of the Act that are based upon the public disclosure of allegations or transactions “unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” § 3730(e)(4)(A). We decide whether respondent James Stone was an original source. I The mixture of concrete and pond sludge that is the subject of this case has taken nearly two decades to seep, so to speak, into this Court. Given the long history and the complexity of this litigation, it is well to describe the facts in some detail. A From 1975 through 1989, petitioner Rockwell International Corp. was under a management and operating contract with the Department of Energy (DOE) to run the Rocky Flats nuclear weapons plant in Colorado. The most significant portion of Rockwell’s compensation came in the form of a semiannual “‘award fee,’” the amount of which depended on DOE’s evaluation of Rockwell’s performance in a number of areas, including environmental, safety, and health concerns. United States ex rel. Stone v. Rockwell Int’l Corp., 92 Fed. Appx. 708, 714 (CA10 2004). From November 1980 through March 1986, James Stone worked as an engineer at the Rocky Flats plant. In the early 1980’s, Rockwell explored the possibility of disposing of the toxic pond sludge that accumulated in solar evaporation ponds at the facility, by mixing it with cement. The idea was to pour the mixture into large rectangular boxes, where it would solidify into “pondcrete” blocks that could be stored onsite or transported to other sites for disposal. Stone reviewed a proposed manufacturing process for pondcrete in 1982. He concluded that the proposal “would not work,” App. 175, and communicated that conclusion to Rockwell management in a written “Engineering Order.” As Stone would later explain, he believed “the suggested process would result in an unstable mixture that would later deteriorate and cause unwanted release of toxic wastes to the environment.” Ibid. He believed this because he “foresaw that the piping system” that extracted sludge from the solar ponds “would not properly remove the sludge and would lead to an inadequate mixture of sludge/waste and cement such that the ‘pond crete’ blocks would rapidly disintegrate thus creating additional contamination problems.” Id., at 290. Notwithstanding Stone’s prediction, Rockwell proceeded with its pondcrete project and successfully manufactured “concrete hard” pondcrete during the period of Stone’s employment at Rocky Flats. It was only after Stone was laid off in March 1986 that what the parties have called “insolid” pondcrete blocks were discovered. According to respondents, Rockwell knew by October 1986 that a substantial number of pondcrete blocks were insolid, but DOE did not become aware of the problem until May 1988, when several pondcrete blocks began to leak, leading to the discovery of thousands of other insolid blocks. The media reported these discoveries, 3 Appellants’ App. in No. 99-1351 etc. (CA10), pp. 889-38 to 889-39, and attributed the malfunction to Rockwell’s reduction of the ratio of concrete to sludge in the mixture. In June 1987, more than a year after he had left Rockwell’s employ, Stone went to the Federal Bureau of Investigation (FBI) with allegations of environmental crimes at Rocky Flats during the time of his employment. According to the court below, Stone alleged that “contrary to public knowledge, Rocky Flats accepted hazardous and nuclear waste from other DOE facilities; that Rockwell employees were ‘forbidden from discussing any controversies in front of a DOE employee’; that although Rocky Flats’ fluid bed incinerators failed testing in 1981, the pilot incinerator remained on line and was used to incinerate wastes daily since 1981, including plutonium wastes which were then sent out for burial; that Rockwell distilled and fractionated various oils and solvents although the wastes were geared for incineration; that Stone believed that the ground water was contaminated from previous waste burial and land application, and that hazardous waste lagoons tended to overflow during and after ‘a good rain,’ causing hazardous wastes to be discharged without first being treated.” App. to Pet. for Cert. 4a. Stone provided the FBI with 2,300 pages of documents, buried among which was his 1982 engineering report predicting that the pondcrete-system design would not work. Stone did not discuss his pondcrete allegations with the FBI in their conversations. Based in part on information allegedly learned from Stone, the Government obtained a search warrant for Rocky Flats, and on June 6, 1989, 75 FBI and Environmental Protection Agency agents raided the facility. The affidavit in support of the warrant included allegations (1) that pondcrete blocks were insolid “due to an inadequate waste-concrete mixture,” App. 429, (2) that Rockwell obtained award fees based on its alleged “ ‘excellent’ ” management of Rocky Flats, id., at 98, and (3) that Rockwell made false statements and concealed material facts in violation of the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2811, as amended, 42 U. S. C. § 6928, and 18 U. S. C. § 1001. Newspapers published these allegations. In March 1992, Rockwell pleaded guilty to 10 environmental violations, including the knowing storage of insolid pondcrete blocks in violation of RCRA. Rockwell agreed to pay $18.5 million in fines. B In July 1989, Stone filed a qui tam suit under the False Claims Act. That Act prohibits false or fraudulent claims for payment to the United States, 31 U. S. C. § 3729(a), and authorizes civil actions to remedy such fraud to be brought by the Attorney General, § 3730(a), or by private individuals in the Government’s name, § 3730(b)(1). The Act provides, however, that “[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions... from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” § 3730(e)(4)(A). An “original source” is “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” § 3730(e)(4)(B). Stone’s complaint alleged that Rockwell was required to comply with certain federal and state environmental laws and regulations, including RCRA; that Rockwell committed numerous violations of these laws and regulations throughout the 1980’s; and that, in order to induce the Government to make payments or approvals under Rockwell’s contract, Rockwell knowingly presented false and fraudulent claims to the Government in violation of the False Claims Act, 31 U. S. C. § 3729(a). As required under the Act, Stone filed his complaint under seal and simultaneously delivered to the Government a confidential disclosure statement describing “substantially all material evidence and information” in his possession, § 3730(b)(2). The statement identified 26 environmental and safety issues, only one of which involved pondcrete. With respect to that issue, Stone explained in his statement that he had reviewed the design for the pondcrete system and had foreseen that the piping mechanism would not properly remove the sludge, which in turn would lead to an inadequate mixture of sludge and cement. In December 1992, Rockwell moved to dismiss Stone’s action for lack of subject-matter jurisdiction, arguing that the action was based on publicly disclosed allegations and that Stone was not an original source. The District Court denied the motion because, in its view, “Stone had direct and independent knowledge that Rockwell’s compensation was linked to its compliance with environmental, health and safety regulations and that it allegedly concealed its deficient performance so that it would continue to receive payments.” App. to Pet. for Cert. 61a. The Government initially declined to intervene in Stone’s action, but later reversed course, and in November 1996, the District Court granted the Government’s intervention. Several weeks later, at the suggestion of the District Court, the Government and Stone filed a joint amended complaint. As relevant here, the amended complaint alleged that Rockwell violated RCRA by storing leaky pondcrete blocks, but did not allege that any defect in the piping system (as predicted by Stone) caused insolid pondcrete. Respondents clarified their allegations even further in a statement of claims which became part of the final pretrial order and which superseded their earlier pleadings. This said that the pondcrete’s insolidity was due to “an incorrect cement/sludge ratio used in pondcrete operations, as well as due to inadequate process controls and inadequate inspection procedures.” App. 470. It continued: “During the winter of 1986, Rockwell replaced its then pondcrete foreman, Norman Fryback, with Ron Teel. Teel increased pondcrete production rates in part by, among other things, reducing the amount of cement added to the blocks. Following the May 23, 1988 spill, Rockwell acknowledged that this reduced cement-to-sludge ratio was a major contributor to the existence of insufficiently solid pondcrete blocks on the storage pads.” Id., at 476-477. The statement of claims again did not mention the piping problem asserted by Stone years earlier. Respondents’ False Claims Act claims went to trial in 1999. None of the witnesses Stone had identified during discovery as having relevant knowledge testified at trial. And none of the documents Stone provided to the Government with his confidential disclosure statement was introduced in evidence at trial. Nor did respondents allege at trial that the defect in the piping system predicted by Stone caused insolid pondcrete. To the contrary, during closing arguments both Stone’s counsel and the Government’s counsel repeatedly explained to the jury that the pondcrete failed because Rockwell’s new foreman used an insufficient cement-to-sludge ratio in an effort to increase pondcrete production. The verdict form divided the False Claims Act count into several different claims corresponding to different award-fee periods. The jury found in favor of respondents for the three periods covering, the pondcrete allegations (April 1, 1987, to September 30, 1988), and found for Rockwell as to the remaining periods. The jury awarded damages of $1,390,775.80, which the District Court trebled pursuant to 31 U. S. C. § 3729(a). Rockwell filed a postverdict motion to dismiss Stone’s claims under § 3730(e)(4), arguing that the claims were based on publicly disclosed allegations and that Stone was not an original source. In response, Stone acknowledged that his successful claims were based on publicly disclosed allegations, but asserted original-source status. The District Court agreed with Stone. The United States Court of Appeals for the Tenth Circuit affirmed in relevant part, but remanded the case for the District Court to determine whether Stone had disclosed his information to the Government before filing his qui tam action, as § 3730(e)(4)(B) required. On remand, the District Court found that Stone had produced the 1982 engineering order to the Government, but that the order was insufficient to communicate Stone’s allegations. The District Court also found that Stone had not carried his burden of proving that he orally informed the FBI about his allegations before filing suit. On appeal, the Tenth Circuit disagreed with the District Court’s conclusion and held (over the dissent of Judge Briscoe) that the 1982 engineering order sufficed to carry Stone’s burden of persuasion. 92 Fed. Appx. 708. We granted certiorari, 548 U. S. 941 (2006), to decide whether Stone was an original source. II Section 3730(e)(4)(A) provides: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” (Footnote omitted.) As discussed above, § 3730(e)(4)(B) defines “original source” as “an individual who [1] has direct and independent knowledge of the information on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” As this cáse comes to the Court, it is conceded that the claims on which Stone prevailed were based upon publicly disclosed allegations within the meaning of § 3730(e)(4)(A). The question is whether Stone qualified under the original-source exception to the public-disclosure bar. We begin with the possibility that little analysis is required in this case, for Stone asserts that Rockwell conceded his original-source status. Rockwell responds that it conceded no such thing and that, even had it done so, the concession would have been irrelevant because § 3730(e)(4) is jurisdictional. We agree with the latter proposition. It is true enough that the word “jurisdiction” does not in every context connote subject-matter jurisdiction. Noting that “jurisdiction” is “ ‘a word of many, too many, meanings,’ ” we concluded in Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), that establishing the elements of an offense was not made a jurisdictional matter merely because the statute creating the cause of action was phrased as providing for “jurisdiction” over such suits. Id., at 90 (quoting United States v. Vanness, 85 F. 3d 661, 663, n. 2 (CADC 1996)). Here, however, the issue is not whether casting the creation of a cause of action in jurisdictional terms somehow limits the general grant of jurisdiction under which that cause of action would normally be brought, but rather whether a clear and explicit withdrawal of jurisdiction withdraws jurisdiction. It undoubtedly does so. Just last Term we stated that, “[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue.” Arbaugh v. Y&H Corp., 546 U. S. 500, 515-516 (2006) (footnote omitted). Here the jurisdictional nature of the original-source requirement is clear ex visceribus verborum. Indeed, we have already stated that § 3730(e)(4) speaks to “the power of a particular court” as well as “the substantive rights of the parties.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951 (1997). Stone’s contrary position rests entirely on dicta from a single Court of Appeals decision, see United States ex rel. Fallon v. Accudyne Corp., 97 F. 3d 937, 940-941 (CA7 1996). Accudyne thought it significant that jurisdiction over False Claims Act cases is conferred by 28 U. S. C. §§ 1331 and 1345 (the federal-question and United-States-as-plaintiff provisions of the Judicial Code) and 31 U. S. C. § 3732(a) (the provision of the False Claims Act establishing federal-court venue and conferring federal-court jurisdiction over related state-law claims), rather than § 3730, which is the “section” referenced in § 3730(e)(4). To eliminate jurisdiction, the court believed, it is those jurisdiction-conferring sections that would have to be referenced. We know of nothing in logic or authority to support this. The jurisdiction-removing provision here does not say “no court shall have jurisdiction under this section,” but rather “no court shall have jurisdiction over an action under this section.” That is surely the most natural way to achieve the desired result of eliminating jurisdiction over a category of False Claims Act actions — rather than listing all the conceivable provisions of the United States Code whose conferral of jurisdiction is being eliminated. (In addition to the provisions cited by the Accudyne court, one might also have to mention the diversity-jurisdiction provision, 28 U. S. C. § 1332, and the supplemental-jurisdiction provision, § 1367.) Accudyne next observed that the public-disclosure bar limits only who may speak for the United States on a subject and who if anyone gets a financial reward, not the “categories of disputes that may be resolved (a real ‘jurisdictional’ limit).” 97 F. 3d, at 941. But this is a classic begging of the question, which is precisely whether there has been removed from the courts’ jurisdiction that category of disputes consisting of False Claims Act qui tam suits based on publicly disclosed allegations as to which the relator is not an original source of the information. Nothing prevents Congress from defining the “category” of excluded suits in any manner it wishes. See, e. g., 28 U. S. C. § 1500 (no jurisdiction over “any claim for or in respect to which the plaintiff... has pending in any other court any suit... against the United States”). Lastly, Accudyne asserted that “the Supreme Court had held that a similar reference to jurisdiction in the Norris-LaGuardia Act, 29 U. S. C. §§ 101, 104, limits remedies rather than subject-matter jurisdiction.” 97 F. 3d, at 941 (citing Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U. S. 429, 444-446 (1987)). But the language of the Norris-LaGuardia Act is in fact not similar. It provides that “[n]o court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute...,” 29 U. S. C. § 104 (emphasis added). It is fa-dally a limitation upon the relief that can be accorded, not a removal of jurisdiction over “any case involving or growing out of a labor dispute.” Here, by contrast, the text says “[n]o court shall have jurisdiction over an action under this section.” Whether the point was conceded or not, therefore, we may, and indeed must, decide whether Stone met the jurisdictional requirement of being an original source. III We turn to the first requirement of original-source status, that the relator have “direct and independent knowledge of the information on which the allegations are based.” 31 U. S. C. § 3730(e)(4)(B). Because we have not previously addressed this provision, several preliminary questions require our attention. A First, does the phrase “information on which the allegations are based” refer to the information on which the relator's allegations are based or the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based? The parties agree it is the former. See Brief for Petitioners 26, n. 13; Brief for United States 24, and n. 8; Brief for Respondent Stone 15,21. But in view of our conclusion that f'3730(e)(4) is jurisdictional, we must satisfy ourselves that the parties’ position is correct. Though the question is hardly free from doubt, we agree that the “information” to which subparagraph (B) speaks is the information upon which the relators’ allegations are based. To begin with, subparagraph (B) standing on its own suggests that disposition. The relator must have “direct and independent knowledge of the information on which the allegations are based,” and he must “provid[e] the information to the Government before filing an action under this section which is based on the information.” Surely the information one would expect a relator to “provide to the Government before filing an action... based on the information” is the information underlying the relator’s claims. Subparagraph (A) complicates matters. As described earlier, it bars actions based on the “public disclosure of allegations or transactions” and provides an exception for cases brought by “an original source of the information.” If the allegations referred to in subparagraph (B)’s phrase requiring “direct and independent knowledge of the information on which the allegations are based” are the same “allegations” referred to in subparagraph (A), then original-source status would depend on knowledge of information underlying the publicly disclosed allegations. The principal textual difficulty with that interpretation is that subparagraph (A) does not speak simply of “allegations,” but of “allegations or transactions.” Had Congress wanted to link original-source status to information underlying the public disclosure, it would surely have used the identical phrase, “allegations or transactions”; there is no conceivable reason to require direct and independent knowledge of publicly disclosed allegations but not of publicly disclosed transactions. The sense of the matter offers strong additional support for this interpretation. Section 3730(e)(4)(A) bars actions based on publicly disclosed allegations whether or not the information on which those allegations are based has been made public. It is difficult to understand why Congress would care whether a relator knows about the information underlying a publicly disclosed allegation (e. g., what a confidential source told a newspaper reporter about insolid pondcrete) when the relator has direct and independent knowledge of different information supporting the same allegation (e. g., that a defective process would inevitably lead to insolid pondcrete). Not only would that make little sense, it would raise nettlesome procedural problems, placing courts in the position of comparing the relator’s information with the often unknowable information on which the public disclosure was based. Where that latter information has not been disclosed (by reason, for example, of a reporter’s desire to protect his source), the relator would presumably be out of court. To bar a relator with direct and independent knowledge of information underlying his allegations just because no one can know what information underlies the similar allegations of some other person simply makes no sense. The contrary conclusion of some lower courts rests on the following logic: The term “information” in subparagraph (B) must be read in tandem with the term “information” in sub-paragraph (A), and the term “information” in subparagraph (A) refers to the information on which the publicly disclosed allegations are based. See, e. g., United States ex rel. Laird v. Lockheed Martin Eng. & Science Servs. Co., 336 F. 3d 346, 354 (CA5 2003). The major premise of this reasoning seems true enough: “information” in (A) and (B) means the same thing. The minor premise, however — that “information” in (A) refers to the information underlying the publicly disclosed allegations or transactions — is highly questionable. The complete phrase at issue is “unless... the person bringing the action is an original source of the information.” It seems to us more likely (in light of the analysis set forth above) that the information in question is the information underlying the action referred to a few words earlier, to wit, the action “based upon the public disclosure of allegations or transactions” referred to at the beginning of the provision. On this interpretation, “information” in subparagraph (A) and “information on which the allegations are based” in sub-paragraph (B) are one and the same, viz., information underlying the allegations of the relator’s action. B Having determined that the phrase “information on which the allegations are based” refers to the relator’s allegations and not the publicly disclosed allegations, we confront more textual ambiguity: Which of the relator’s allegations are the relevant ones? Stone’s allegations changed during the course of the litigation, yet he asks that we look only to his original complaint. Rockwell argues that Stone must satisfy the original-source exception through all stages of the litigation. In our view, the term “al Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_usc1	43	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. SUPERIOR OIL COMPANY et al. v. Stewart L. UDALL, Secretary of the Interior, Appellant, Union Oil Company of California. SUPERIOR OIL COMPANY et al. v. Stewart L. UDALL, Secretary of the Interior, Union Oil Company of California, Appellant. Nos. 22192, 22194. United States Court of Appeals District of Columbia Circuit. Argued Nov. 8, 1968. Decided Jan. 6, 1969. Mr. Robert M. Perry, Atty., Department of Justice, with whom Messrs. Edmund B. Clark and Thomas L. McKevitt, Attys., Department of Justice, were on the brief, for appellant in No. 22,192. Mr. Roger H. Doyle with whom Mr. E. W. Cole was on the brief, for appellant in No. 22,194. Mr. Abe Krash, Washington, D. C., with whom Messrs. Thurman Arnold and Daniel A. Rezneck, Washington, D.C., were on the brief, for appellees, Superi- or Oil Company, et al. Before Burger, Tamm and Robinson, Circuit Judges. BURGER, Circuit Judge: These appeals challenge a judgment of the District Court which permanently enjoined the Secretary of the Interior from issuing an oil and gas lease on certain public lands to Union Oil Company of California and directed that such lease be issued to Superior Oil Company, Ashland Oil and Refining Company, Canadian Superior Oil Company (U.S.) Ltd., General Crude Oil Company, Highland Oil Company, Kerr-McGee Corporation, Texas Eastern Transmission Corporation and Transocean Oil, Inc., collectively described hereafter as Superior. Sealed bids were duly called for by the Secretary of the Interior for the sale of certain oil leases and when bids were opened it developed that the document purporting to be Union’s sealed bid of $13,600,000 was not signed but that the next highest offer made by Superior, was $11,628,691.20 and was signed and otherwise in full compliance with the statute, the regulations and the Notice of Sale. At this point the officer opening the bids announced: “[T]he next bid, gentlemen, I regret to announce * * * is not acceptable * * * it has not been signed.” The bidding officer nevertheless retained the checks submitted by both Union and Superior and subsequently the Secretary declared that Union was the highest qualified responsible bidder. After the District Court entered a temporary restraining order which prevented the Secretary from issuing a lease to Union, the Secretary tendered return of Superior’s funds which he had deposited in a “suspense account.” Superior refused the tender and demanded that a lease be issued to it as the highest bidder. (D The detailed facts essential to our consideration can best be reflected in a summary of the Findings of Fact of District Judge Sirica, which are as follows: (1) That the Department of the Interior duly published a Notice of Sale of leases for the tracts in question pursuant to statutes and regulations fixing the time and place for filing an opening of bids as May 21, 1968 at 10:30 a.m.; (2) The Notice required bids to be filed pursuant to the regulations (43 C.F.R. § 3382, j.) which provides that “leases will be awarded to the highest qualified bidder on the basis specified in the notice of lease offer.” The Notice called for sealed bids and required that the bid for each tract be in a separate sealed envelope. The notice also set forth a sample form of bid and prescribed that it be signed by an authorized officer. One fifth of the bid price was to accompany each bid. (3) Superior’s bid complied with all requirements of the Notice, statutes and regulations. (4) Union submitted a document in a sealed envelope offering $13,600,000 with a tendered check of $2,720,000 in the envelope but the purported bid within the sealed envelope was not signed by any officer of Union; a cover or transmittal letter accompanied the sealed envelope and described the latter as Union’s bid. (5) Pursuant to the Notice of Sale all bids were opened May 21, 1968, at 10:30 a. m. in a public meeting in New Orleans conducted by a Mr. Rankin, Manager of the Bureau of Land Management Department of the Interior. Order No. 575 of the Department, dated October 13, 1954 (19 Fed.Reg. 6720) authorized Rankin to take all actions in connection with leases. Pursuant to regulation, he also had the power to reject bids (43 C.F.R. § 3382.5). (6) Nine bids were received and after the opening Rankin announced that Union’s tender [although apparently the highest] was “not an acceptable bid” because it “had not been signed.” At the same time Rankin stated that Union’s tender was an “unacceptable bid.” (7) Superior’s bid was higher than any tender except that of Union. (8) On the sixth day thereafter, May 27, the draft submitted by Superior for $2,325,738.24 was deposited for collection in a bank with the endorsement of the Department of the Interior for the account of the United States. In accordance with practice and regulations, checks of all bidders lower than Superior were returned uncashed to unsuccessful bidders. The draft tendered by Union was similarly held and deposited by the Secretary in a suspense account pending the Secretary’s administrative decision as to the status of Union’s bid. (9) A right to an administrative appeal is provided by the regulations for those whose bids are rejected but Union did not take an appeal from Rankin’s announced decision of May 21, 1968 that Union’s documents were “unacceptable” because unsigned. (10) On June, 1968 the Secretary announced his decision that the bid made by Union was valid. The District Court on June 18, 1968 per Chief Judge Curran issued a Temporary Restraining Order enjoining the Secretary from executing a lease to Union and on July 3 this was made a preliminary injunction by an order of Judge Corcoran. Other findings related to the irreparable injury to Superior if Union secured a lease, took possession and began drilling operations and in' light of our disposition they need only be noted by reference to the more detailed Findings of Judge Sirica. From these Findings of Fact the District Court concluded that: (a) Sealed bids must be signed authoritatively. (b) Signing of the sealed bid is a matter of substance and failure to do so cannot be waived by the Secretary nor supplied by amendment of the bid after opening. (c) Union did not submit a valid bid and was not a “qualified bidder” under the statute, the regulations and the Notice of Sale. (d) Union’s purported bid was rejected by an authorized officer of the Department of the Interior on May 21, 1968. (e) Superior complied with all provisions of the statute, the regulations and Notice of Sale. (f) Superior was the “highest responsible bidder” and hence the “successful bidder.” (g) Superior's bid was accepted by endorsing and cashing its draft and it is entitled to receive the lease and that the Secretary has a duty to issue the. lease. (h) Other conclusions related to Superior’s standing to sue, that the United States was not an indispensable party and that Superior would be irreparably injured unless it received the lease. If the dispositive Findings of Fact are supported by evidence this court is obliged to affirm; indeed we are bound to affirm unless the District Court is “clearly erroneous.” F.R.Civ.P. 52(a). Union contends its bid consists of the paper containing an offer of $13,600,000.-00 under seal and the transmittal letter which was signed by an authorized officer. Superior contends that a valid bid responsive to the Secretary’s Notice of Sale must be complete in the papers which are sealed and cannot be aided by an extraneous paper; that the bidding officer rejected Union’s bid by declaring it “unacceptable” because it was unsigned; and, finally, that the Secretary accepted its bid by retaining the Superior check and depositing it to the account of the Treasury of the United States after returning bid checks to all bidders whose bids were lower than those of Superior and Union. The Secretary contends that he is not bound by the acts or utterances of Rankin, Manager of the New Orleans Outer Continental Shelf Office, Bureau of Land Management, at the time of opening the bids. The section of the regulations applicable to the award of leases, 43 C.F.R. 3382.5, provides: Following the public opening of the sealed bids as provided in the notice of lease offer, the authorized officer, subject to his right to reject any and all bids will award the lease to the successful bidder. The language of this provision demonstrates that it is the “authorized officer” who has the right to reject bids. The only inquiry then becomes one of discerning the individual who is clothed with the rights of the “authorized officer.” For this determination, we turn to Department of the Interior Order No. 575, October 13, 1954, 19 Fed.Reg. 6720: [T]he Manager Outer Continental Shelf Office is authorized to take all actions in connection with the following: (1) Mineral leases of submerged lands of the Outer Continental Shelf. (b) Mineral leases pursuant to the act of August 7, 1953 (67 Stat. 462; 43 U.S.C. 1331 et seq.), and the regulations under 43 CFR Part 201 (now 43 C.F.R. Subpart 3382). We therefore see that Rankin was in fact the “authorized officer” who had the authority to “reject any and all bids” and that his characterization of Union’s bid as “not an acceptable bid” was not subject to correction as the Secretary asserts. We will later deal with the question whether the Secretary expressly or impliedly accepted Superior’s bid. Having in mind the large sums involved, the large public interest in precision and secrecy of bids for the sale of public land leases, and in the careful procedures called for, the bidders and the public have a substantial interest in certainty. This underlies the detailed procedures provided in the regulations. The need for precision, care and certainty is underscored by the fact that the interest at current permissible rates on the funds of Union and Superior which are immobilized during the pendency of this litigation amount to more than $800 per day; thus bidders and the public have an acute economic interest in having bids resolved surely and swiftly. This consideration caused Chief Judge Curran to expedite the trial of this case and Judge Sirica as trial judge to expedite its disposition. We have similarly given priority to these appeals. (2) The controlling regulations specifically contemplate that bids must be sealed and signed. 43 C.F.R. 3382.4 (a) (1). Likewise, the Notice of Sale specifically required all bids to be submitted in accordance with the regulations and set out a form bid which contained a provision for the signature of the bidder. Indeed, the Secretary acknowledged in his opinion in this case that signing of bids “is a matter of substance. Thus, the deficiency in Union’s bid cannot be waived, nor can it be supplied after the time for receipt of the bids.” We think these authorities and the Secretary’s entirely correct conclusion as to “substance” and “waiver” undermine his present argument that he has the power to make an unreviewable administrative determination as to the legal consequence of Union’s unsigned sealed bid. Judicial deference to administrative agencies when dealing with matters peculiarly within their expert experience is appropriate but the regulations involved here raise questions of interpretation of statutes, regulations and bids which are obviously well within the competence of courts. Not surprisingly the subject of bidding procedures has been given close attention by the Comptroller General whose view is that “the strict maintenance of the competitive bidding procedures required by law is infinitely more in the public interest than obtaining a pecuniary advantage in individual cases by permitting practices which do violence to the spirit and purpose of the law. Conditions or reservations which give a bidder a chance to second-guess his competitors after bid-opening must be regarded as fatal to the bid.” 34 Comp.Gen. 82, 84, B-1204S6 (1954). (Emphasis supplied.) Thereafter, dealing specifically with the signature problem the Comptroller General said “If the bidder chooses to remain silent after the opening of bids he could disavow the bid because of the absence of a signature. This would place him in a position to make an election either to abide by his bid or to claim that the bid was submitted in error by a person without authority to enter into contracts on behalf of a bidder. This would give him more than one chance under the same invitation, [citation omitted] Moreover, when a bid is non-responsive in a material respect, it cannot be corrected even though the nonresponsiveness may be due to mistake or oversight.” Comptroller General, B-160856, March 16, 1967, p. 3 (emphasis supplied). It is not inconceivable that a high bidder in circumstances such as here who found he had made an improvident bid substantially higher than that of other bidders could well seek to exploit every arguable thesis to rid himself of the burden of what he concluded was an undesirable offer. The Secretary’s staff has acknowledged the importance of strict adherence to procedure, ruling in another case “The responsibility for filing a proper offer is the offeror’s. Only by rigid enforcement of the rules can the Department insure orderly procedure and fairness to all applicants.” W. R. Stephens, Department of the Interior, Bureau of Land Management, Misc. 85801, August 15, 1962. The Secretary points to the fact that Union’s bid will produce approximately two million dollars mere in immediate revenue for the government. Obviously this is of substantial importance. By the same token it may well be that if the Secretary now rejected all bids and began anew, the bidders, having exposed their interest and evaluation of the leases, might decide to submit higher bids on a new notice of sale. However there are other significant considerations which must be weighed and which have important implications beyond this particular transaction; they are factors which affect the integrity of the entire governmental program of selling oil leases on public lands and indirectly indeed the whole process of making public contracts by the process of sealed bids. In the area of public contracts where billions are involved in public building, an accretion to the government of even two million dollars can be a manifestation of a short-sighted “penny-wise, pound-foolish” policy if it is allowed to control all decisions. The Secretary’s concern over the differential between Union and Superior is understandable but we think it misses the central legal issues and the important public policy underlying strict rules in bidding. It is also very important that bidders who comply faithfully and scrupulously with bidding regulations should not in effect be penalized by the errors of less careful bidders who fail to- follow correct procedures. This would be a consequence of the Secretary’s now casting out all bids and beginning again because of the infirmity in Union’s bid. The requirement of steadfast compliance with competitive bidding procedures comports best with the need to promote the integrity of the bidding process. Although such a stance may entail some limitation on the Secretary’s discretion, it seems clear that this is an indispensable ingredient to the maintenance of competitive bidding processes which will engender public confidence and that of persons dealing with the Government. For similar reasons we reject the argument that Union’s “deficiency” may be cured by incorporation by reference to the signed transmittal letter which was not submitted with the secrecy-guaranteed by sealing. It is quite true, as argued by the Secretary, that a valid contract can be spelled out of multiple papers, some unsigned, if they are referred to in a signed document and thus become incorporated by reference. But this hornbook principle of contract law does not control over specific regulations implementing a carefully constructed scheme of sealed bids in public contracts. No authority has been cited and we discover none which compels or even contemplates the use of materials extraneous to the sealed bid to remedy deficiencies in the sealed bid itself. In support of his position, the Secretary calls forth the “settled rule of Government contract law that an unsigned bid may be considered for an award if accompanied by a letter, bond, or other document signed by the bidder clearly evidencing his intent to submit the bid.” The short answer to this is that the cases relied on by the Secretary did not involve bidding under regulations such as are controlling here. General rules of Government contract law must give way to the specific regulations and Notice of Sale governing this kind of transaction in the same way that common law contract principles must yield to the extent that they are inconsistent with governing regulations. We hold that in the context of competitive bidding the Secretary may not resuscitate an unsigned bid either by construing the regulations or by relying on general principles of Government contract law. (3) The only remaining question is the propriety of the District Court’s ordering the Secretary to issue the lease to Superior. Section 8 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1337(a) (1964), provides that the Secretary of the Interior “is authorized to grant to the highest responsible qualified bidder by competitive bidding * * (emphasis added). The use of the word “authorized” indicates that the Secretary has discretion in granting leases and is not required to do so. He might for example have rejected all bids on the ground that none was in the public interest, but if this had been indicated it was a decision which he was obliged to make at the time, not as an afterthought with the result that Union and other bidders would have “another bite at the apple.” It seems clear on this record that had Union submitted no bid at all, Superior would have been awarded this lease as the highest responsible qualified bidder since it is implicit in the retention of both Union’s and Superior’s checks and returning all others, that the Secretary determined that both Union and Superior were responsible qualified bidders. This was a reasonable course to follow so that if the Secretary ultimately decided that Union’s bid was defective he had another bid on which to rely to make an award. It would be plainly inequitable to Superior and damaging to the long range public interest in the integrity of the bidding process to allow Union, whose error has created this problem, to have a second opportunity to bid against Superior and all other bidders. We therefore hold that the District Court findings and conclusion that Superior was the “highest responsible qualified bidder” are amply supported by the evidence of the Secretary’s action in accepting and holding Superior’s check in the circumstances shown by this record. The judgment of the District Court is therefore Affirmed. . Excerpts from a tape recording of the opening of the bids contains the following remarks made by Mr. Rankin, referring to Union’s bid: “The next bid * * * Gentlemen, I regret to announce that the next bid is not an acceptable bid. It has not been signed. Gentlemen, the * * * the * * * unsuccessful bid, or rather the * * * the * * * unacceptable bid, was a bid that was not signed and it was * * * ah * * * in an amount greater than the highest bid that I read.” JA 16 & 84. . Appellant Union also urges that the United States is an indispensable party but nowhere in the briefs of the Attorney General filed on behalf of the Secretary is this claim urged. Apart from all other aspects, including the need to have the United States before us in order to afford relief, the absence of any contention on this point by the Attorney General suggests we need not deal with the claim. . The Secretary has cited the following cases to this court: “Girard [Life] Insurance Company v. Cooper, 162 U.S. 529, 543 [16 S.Ct. 879, 40 L.Ed. 1062] (1896); Commercial Standard Ins. Co. v. Garrett, 70 F.2d 969, 974 (C.A. 10, 1934); Woodbury v. United States, 192 F.Supp. 924, 935 (D.Ore.1961), aff’d, 313 F.2d 291 (C.A. 9, 1963); Hillcrest Inv. Co. v. United States, 55 F.Supp. 147, 149 (W.D.Mo.1944), aff’d, 147 F.2d 194 (C.A. 8, 1945).” (Reply Brief for Secretary at 3). In his memorandum, which he described as constituting “a final departmental decision” (JA 193), directing the Bureau of Land Management to issue a lease to Union should the consideration be found adequate, the Secretary stated: It is a settled rule of Government contract law that an unsigned bid may be considered for an award if accompanied by a letter, bond or other document signed by the bidder clearly evincing his intent to submit the bid. 17 Comp.Gen. 497 (1937), 34 Comp.Gen. 439 (1955), 36 Comp.Gen. 523 (1957). (JA 192). . The nine bids were as follows: Union................ $13,600,000.00 Superior ............. 11,628,691.20 Shell Oil ............. 6,804,691.00 Atlantic Richfield...... 4,221,460.00 Texaco ............... 3,386,880.00 Humble .............. 2,805,120.00 Marathon ............ 1,503,360.00 Chevron .............. 1,186,560.00 Sun Oil .............. 744,710.40 JA 16, 84, 195 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_appel1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". COMMONWEALTH BANK et al. v. UNITED STATES. No. 8312. Circuit Court of Appeals, Sixth Circuit. Nov. 13, 1940. Charles F. Meyler and Leo F. Covey, both of Detroit, Mich.-, for appellants. Leon F. Cooper, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gem., Sewall Key and Leon F. Cooper, Sp. Assts. to Atty. Gen., and John C. Lehr and T. Thomas Smith, both of Detroit, Mich., on the brief), for appellee. Before SIMONS, ALLEN, and HAMILTON, Circuit Judges. SIMONS, Circuit Judge. The suit was brought by the United States to enforce liability against the appellant bank and two of its officers, for failure to surrender property or property rights alleged to be in the possession of the bank, belonging to a delinquent taxpayer, and subject to distraint under § 1114(e) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 325. The bank defended upon the ground that it possessed no property of the taxpayer and if so had rights therein superior to the claims of the government, and with its codefendants appeals from a judgment in favor of the United States. The delinquent taxpayer is John J. Hoefle (see Hoefle v. Commissioner, 6 Cir., 114 F.2d-713, decided September 16, 1940), who for several years carried a substantial commercial checking account with the bank. On October 31, 1933, affidavits were served upon the bank, sworn to by Wm. C. Rands, of Detroit, setting forth that his name, and the name of a corporation of which he was president, had been forged upon dividend checks issued by various corporations in which Rands, or Rands, Inc., was the payee, aggregating upwards of $30,000, and demanding payment from the bank, and all other responsible parties, for the amount of the checks. Photostatic copies of the allegedly forged checks, filed with the affidavits, disclosed that they were endorsed in the name of the payee, followed by the name “John J. Hoefle.” An investigation made by the bank showed that the checks had been deposited by Hoefle, credited to his account, and the proceeds paid out upon his signature. The deposited checks had been collected from drawee banks, through various other banks and clearing houses. At the time of the investigation, Hoefle had a balance in his checking account of $552.64, but on the 26th of October, he had deposited an additional sum of $10,310.73, against which cashier’s checks in like amount, payable to the Collector of Internal Revenue at Detroit, had been delivered to him. Inquiry at the Collector’s office brought the information that the cashier’s checks had not been delivered to the Collector, and there was no record there of any sum owing by Hoefle for taxes. On November 2, Hoefle returned the cashier’s checks to the bank with the request that they be canceled and new checks, in the same aggregate amount, issued, one of them payable to Hoefle himself, and others to the Collector, whereupon the bank informed Hoefle of Rands’ claim of forgery and advised him that all his funds would be held by the bank as an off-set against his liability to it. On the 10th of November, Hoefle presented at the bank a general assignment of all his right to money on deposit, and all other property in the possession of the bank, to one Schaeffer. He was advised that the assignment would not be honored until the bank’s liabilities, arising out of Hoefle’s deposits, had been determined and satisfied. On December 11th, the Collector at Detroit made a demand upon Hoefle for the payment of delinquent taxes in excess of $50,000, in pursuance of certificates of assessment received from Washington. Contemporaneously the Collector filed with the Register of Deeds for Wayne County, Michigan, and with the Clerk of the United States District Court for the Eastern District of Michigan, notice of a tax lien claimed by the government, against all property and property rights belonging to Hoefle. Warrants of distraint followed on December 21, 1933, and a notice of levy, together with copies of the distraint warrants and lien notice, was served upon the bank together with a demand that it surrender all money, property, and property, rights belonging to Hoefle. The bank refused, advising the Collector of the possibility that it might be held liable for alleged forgeries of checks deposited by Hoefle, and that no funds belonging to him would be surrendered until its liability had been determined. The government began its action on February 6, 1936. In the meantime, numerous claims had been filed against the bank by banks which had endorsed the allegedly forged checks in process of collection, and Rands had brought suits against the drawers of the checks, including one against a Canadian Corporation, in the Supreme Court of Ontario. All of the defendants called upon the bank to defend. Conceiving that liability would be asserted against it in the event that Rands should prevail, the bank undertook defense and.expended substantial sums in investigation, retainer of attorneys, and preparation for trial.' The first case to reach trial was that in Ontario, where the bank successfully defended on a by-law of the dividend-paying corporation, which constituted the issuance and mailing of a dividend check payment of its dividend obligation. The Ontario judgment, with other circumstances, led to a settlement between Rands, Hoefle, and the appellant bank, whereby the liability of each of the parties, growing out of the alleged forgeries, was discharged. The settlement was consummated in May, 1937, and by it the bank’s loss first became fixed and determinable. Schaeffer was permitted to intervene in the proceedings below, to plead his assignment of Hoefle’s claim against the bank, and to pray for judgment against it. The bank responded with a denial of the intervener’s rights under the assignment. Upon trial, appellants and appellee offered to waive a jury, but the intervener declined. At the close of all the proofs, the court, of its own motion and over the objections of all parties, dismissed the intervener from the proceeding, and, acting upon the earlier waiver of the remaining parties, dismissed the jury, took the cause under advisement, and later, upon announcing findings of fact and conclusions of law, entered judgment for the government for an amount equal to Hoefle’s deposit balance including the impounded cashier’s checks. Section 1114(e) of the Revenue Act of 1926, provides that any person in possession of property or rights to property subject to distraint, upon which a levy has been made, shall, upon demand by the Collector, or his deputy, surrender such property or rights unless they were subject to an attachment or execution under judicial process, and that any person who fails ,to do so shall be liable to the United States in a sum equal to the value of the property or rights not surrendered, up to the amount of the taxes for the collection of which the levy was made. The first contention of the appellant is that there was no valid levy against Hoefle, because ten days had not elapsed between the date of notice and demand and the levy, and that the levy was, therefore, premature and void. We need give little consideration to this contention since the appellant is not the taxpayer and the latter is not here to complain. United States v. First Capital Nat. Bank, 8 Cir., 89 F. 2d 116; United States v. American Exchange Irving Trust Co., D.C.N.Y., 43 F. 2d 829. Were the controversy one that involved, primarily, priority of liens, inquiry might be made as to their validity, though this we do not decide. There is no issue here, however, of priority. If the bank has a lien upon funds owing by it to Hoefle, its lien is clearly prior to that of the government. That the appellant has been in doubt as to the legal principle to be invoked again.st the imposition of the liability asserted by the government, is obvious. At the outset it claimed a lien upon funds ostensibly belonging to Hoefle. Concluding, however, that there were no specific funds in its possession belonging to Hoefle, .since the relationship of a bank to its depositor is merely that of a creditor. Keyes v. Paducah & I. R. Co., 6 Cir., 61 F.2d 611, 86 A.L.R. 203, and Hoefle’s deposit was not ear-marked, or set apart from other funds of the bank, it sensed anomaly in claiming a lien upon its own funds. It now takes the position that it was not in possession of property or rights of property belonging to the debtor, because its indebtedness to Hoefle had become subject.to the terms of an agreement it had made with Hoefle, prior to the levy, whereby the bank acquired the right to indemnify itself for any expense incurred by it as a result of such claims, the consideration for the agreement being the bank’s undertaking to defend against them and to pay over to Hoefle any balance remaining, with interest thereon at savings bank rates. This necessitates some amplification of the facts of record. Appellant’s counsel, Meyler, gave evidence that, following Hoefle’s first call upon the bank, and before the date of the tax levy, Hoefle had had an interview with him during which an agreement had been reached that the bank might hold any funds to which Hoefle was entitled, as indemnity against any loss or expense which it might incur by reason of the alleged forgeries, and that if Hoefle would assist and cooperate in the defense of claims against the bank, any part of the fund eventually determined to be his would carry savings bank interest, that the bank carried put this agreement, was successful in resisting judgments that ultimately might have imposed a liability upon Hoefle or the bank, and incurred thereby an expense in excess of $7,000. It is this sum which it seeks to set off against any moneys owing to Hoefle. It is undisputed that the bank incurred no liability by reason of its endorsement and collection of the allegedly forged dividend checks. Its claim of right to be compensated for the expense incurred in defending suits, including those to which it was not itself a party, rests entirely upon the oral agreement claimed to have been made with Hoefle. The court below found the terms of the alleged agreement to be vague and uncertain. Meyler’s testimony is uncorroborated, and Hoefle was not called by either side as a witness. The court assumed that if he had been, he would have testified adversely to the bank’s contention and that there was no such oral agreement. The presumption is unwarranted. Meyler is a practitioner in good standing in this circuit; has been for many years attorney for the bank; and Hoefle’s interests were adverse. No inference may be invoked that Meyler’s testimony was either deliberately, or, through faulty memory, inaccurate. We have said, upon another occasion, Voltz v. Treadway & Marlatt, 6 Cir., 59 F.2d 643, 644, “While the testimony of interested parties to an alleged parol assignment should undoubtedly be received with some caution, In re Macauley, D.C.Mich., 158 F. 322, yet where such parol assignment is established by testimony which is uncontradicted and credible, by witnesses who are not impeached, and there are no circumstances which cast doubt upon their truthfulness, it will be upheld.” But to accept the truth of Mr. Meyler’s testimony is not to determine the validity of the alleged parol agreement, or the definiteness of its terms. The court found them vague and uncertain, and so they appear to be. Undoubtedly, what the parties to the agreement had principally in mind, was a possible loss to the bank upon its endorsements. No loss was sustained. There are, moreover, circumstances which indicate that neither Hoefle nor the bank recognized any oral assignment to result from Mr. Meyler’s interview with Hoefle. The interview took place on or about November 6 or 8, 1933. Yet within a few days thereafter, Hoefle appeared at the bank with an assignment to Schaeffer, dated November 2, 1933. The bank, in refusing to recognize the assignment, asserted no right to retain the funds under any agreement made between Hoefle and Meyler. It made no entry upon its books indicating that the items were held as an indemnity, or pledge, to secure Hoefle’s possible liability to it. Throughout the controversy its ledger sheet, reflecting Hoefle’s account, showed a balance of $500, without notation that this sum was retained in pledge of any contingent liability. Likewise, is there no notation upon the cashier’s checks impounded, to indicate that they too were held as a pledge for security against loss or expense for defending suits. There is no charge against Hoefle’s account for sums expended in litigation or preparation for trial, and it must be presumed that such items were charged to general operating expenses. Nor was there credit to Hoefle for savings bank interest, in accordance with the terms of the agreement. While the bank’s defense against litigation, and Hoefle’s cooperation with it, is consistent with the terms of the agreement, the circumstances are equally consistent with the purpose of both to protect individual interests. The conclusion is inescapable that the bank either did not authorize or ratify Meyler’s agreement with Hoefle, or, having done so, repudiated it, and so also did Hoefle. The Bank’s contention that there was error in dismissing Schaeffer as an intervener is of no avail to it. Schaeffer did not appeal and the bank’s answer to his intervening petition was a denial of Schaeffer’s rights under his assignment. There is ample basis in the record for a conclusion that the assignment was but a subterfuge designed to defeat the claim of the United States. The loan for which it stood as security was, in fact, a withdrawal of Hoefle’s own funds from an account carried in the name of Schaeffer, his brother-in-law. Whether the dismissal of the intervening petition is an adjudication of its invalidity, we do not undertake to decide. The court made an order preserving the evidence bearing upon the Schaeffer assignment, in the event that at another time, and in other litigation, its validity might come into question. This was for the protection of the bank. Finally, it must be said that the terms of the statute, under which the tax levy was made, recognize no defense except where there is no property or property right of the taxpayer in the defendant’s possession, where the property or right is not subject to distraint, or is subject to an attachment or execution under some judicial process. The proceeding authorized is not an action in rem, nor is it a suit for the collection of a tax. It is a suit to enforce personal liability for failure to surrender property belonging to delinquent taxpayer. The judgment below is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_respond1_1_4	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTALCO ALUMINUM CORPORATION, Respondent. INTALCO ALUMINUM CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 26709, 26787. United States Court of Appeals, Ninth Circuit. July 23, 1971. Allen Howard Feldman (argued), Charles M. Henderson, Director, NLRB, Seattle, Wash., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Marion Griffin, Washington, D. C., for N.L.R.B. Roy E. Potts (argued), George P. Parker, Jr., of Kindel & Anderson, Los Angeles, Cal., for Intalco Aluminum Corp. Before HAMLIN, MERRILL and ELY, Circuit Judges. . On September 19, 1969, we granted enforcement of the Board’s order in Intalco Aluminum Corp. v. N.L.R.B., 417 F.2d 36 (9th Cir. 1969). . In the Regional Director’s “Report on Objections to Election,” he rejected the objection that the respondent deducted dues from the employees’ cheeks during the pendency of the election, noting that the Machinists and respondent were “parties to a current collective bargaining agreement that has a dues checkoff clause.” We do not agree with respondent’s contention that this report was sufficient to grant interim effect to the previously invalidated contract. This order merely permitted the continuance of the past checkoff procedure and it would be wholly unreasonable to construe the Regional Director’s action as a repudiation of the Board’s previous decision with regard to the contract. The fact that enforcement had not yet been granted by this court is immaterial, for a stay of the Board’s order had neither been granted nor sought pending enforcement proceedings before this court. Section 10(g) of the Act provides: “The commencement of proceedings under subsection (e) and (f) of this section shall not, unless specifically ordered by the court, operate as a stay of the Board’s order.” Subsection (e) provides for proceedings to enforce the Board’s order in the court of appeals and subsection (f) for a review of a final order of the Board in such court by an aggrieved party. See also N.L.R.B. v. Winn-Dixie Stores, Inc., 361 F.2d 512 (5th Cir.), cert. denied, 385 U.S. 935, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966). HAMLIN, Circuit Judge. This is an application for enforcement of an order of the National Labor Relations Board (Board), 182 NLRB 57. The Board found that Intalco Aluminum Corporation (Respondent) violated section 8(a) (1) of the National Labor Relations Act (28 U.S.C. § 158(a) (1)) by wrongfully discharging 26 employees and suspending one employee, and by refusing to reinstate 15 striking employees upon their application for work at the conclusion of the strike. Respondent cross-petitions to review and set aside the Board’s order. The facts surrounding the commission of the named unfair labor practices by respondent may be summarized briefly: On February 21, 1968, the Board made an order that respondent violated section 8(a) (1) and (2) by extending recognition to and executing a collective bargaining agreement with the International Association of Machinists and Aerospace Workers (AFL-CIO) (Machinists) when it was a minority union, and further ordered that respondent cease giving effect to such agreement. The Board petitioned this court for enforcement of said order. In March, 1969, while the proceeding in this court was pending, the Board ordered a representation election. Along with the Machinists, Aluminum Workers International Union (AFL-CIO) (Aluminum Workers) and Bellingham Metal Trades Council, Allied Industries Division (Metal Trades Council) were competing to represent the employees. The election, held March 26 and 27, 1969, resulted in the Metal Trades Council receiving the majority of votes; but at the instance of the Aluminum Workers who alleged improper preelection tactics on the part of the Machinists and respondent, the election was set aside. A new election was ordered. During the intervening period between the original Board order declaring the contract between respondent and Machinists void and the election held on March 26 and 27, 1969, respondent nonetheless continued to recognize the Machinists. While the Aluminum Workers’ objections to the election were filed but not yet acted upon by the Board, the strike occurred which resulted in the ultimate discharge of the employees here in question. The trial examiner found that respondent discharged 26 of 28 employees in violation of section 8(a) (1) of the Act and further violated that section in refusing to reinstate 15 of the striking employees who later reapplied for work. Respondent’s main defense raised in the proceeding before the trial examiner, and principal contention herein, is that the strike was illegal and that therefore it was an unprotected activity. The asserted illegality is based upon two contentions: (1) That the purpose of the strike was to force respondent’s recognition of the Machinists in the forthcoming election; (2) that the strike was in clear violation of the no-strike and grievance provisions of the respondent’s contract with the Machinists. The trial examiner found that the animus behind the strike was a protest of longstanding employees’ grievances. This was reached largely upon crediting the testimony of one employee. With respect to the contract provisions, he further found that respondent’s contract with the Machinists did not govern the rights of the employees since that agreement had been specifically declared to be of no effect by the Board previous to the strike. Our review is narrowly circumscribed, for the findings of the trial examiner, adopted by the Board, must be affirmed when there is substantial evidence on the record considered as a whole to support these findings. Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). As is the usual case in a question such as this, the respondent directs the court’s attention to conflicting evidence in the record concerning the employees’ motivation in striking. After examining the testimony before the trial examiner, we are firmly convinced that there is ample and adequate evidence to support the finding that the strike was initiated in an effort to protest employee grievances and not in an attempt to compel recognition of the Machinists and that it was a protected activity. With respect to the second contention in support of the illegality of the strike, we agree with the trial examiner that this must be rejected in light of the Board’s decision setting aside the respondent’s contract with the Machinists prior to the strike. We see no merit to the other contentions raised by respondent. Accordingly, the order will be enforced. . The new election was granted at the request of the Aluminum Workers and Metal Trades Council pursuant to the Board’s ruling in Carlson Furniture Industries, Inc., 157 NLRB 851. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_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). ALLEN et al. v. JONES. (Court of Appeals of District of Columbia. Submitted February 1, 1926. Decided April 5, 1926.) No. 4280. 1. Tenancy in common <@=28(3) — One cotenant cannot recover of the others for use and occupancy, in absence of agreement, ouster, or subletting (Code, § 93). A cotenant in partition proceeding cannot recover of his cotenants for use and occupancy of premises involved, in absence of an agreement, or actual or constructive ouster, or subletting; Code, § 93, presupposing a subletting. 2. Appeal and error <@=635 (3) — Failure to incorporate testimony in record on appeal held not to warrant affirmance of decree requiring cotenants to account for use and occupancy. Failure of cotenants, appealing from decree requiring them to account to another cotenant for use and oceupancy of premises, to incorporate testimony in record, held not to justify affirmance, in view of pleading and findings. Appeal from the Supreme Court of the District of Columbia. Suit by Eosetta Jones against Josephine Moten Allen and another. Decree for plaintiff, and defendants appeal. Reversed and remanded. W. C. Martin and G. E. C. Hayes, both of Washington, D. C., for appellants. Alex Wolf and Nathan Cayton, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and YAN ORSDEL, Associate Justices. ROBB, Associate Justice. Appeal from a decree in the Supreme Court of the District in a partition proceeding; The petition filed by the appellee, as plaintiff below, sets forth that she and the defendants are the heirs at law and next of kin of Mary M. Moten, deceased, and as such vested with fee-simple title to the real estate sought to be partitioned, and that since the death of Mary M. Moten the defendants “have used and occupied the said premises without paying any rental therefor to the petitioner herein.” Agreeably to the prayers of the petition, the cause was referred to the auditor of the Supreme Court of the District, who found that since the death of Mrs. Moten the property had been solely used and occupied by the defendants “without the payment of rent therefor.” The decree of the court was for the sale of the premises and an accounting by the defendants to the plaintiff for use and occupancy. The question for determination here, therefore, is whether one of several tenants in common may compel his eotenants to account to him for use and occupation, in the absence of an agreement, ouster, or subletting by the cotenants. In Lyon v. Bursey, 42 App. D. C. 519, we ruled that a tenant in common is not liable to his cotenants for use and occupation, unless there has been an actual or constructive ouster of the cotenants. See, also, Meyers v. Loan & Savings Ass’n, 116 A. 453, 139 Md. 607, 615; Zwergel v. Zwergel, 194 N. W. 505, 224 Mich. 31, 36; Carroll v. Carroll, 74 N. E. 913, 188 Mass. 558. Under the provisions of section 93 of the Code, “any tenant in common who may have received the rents and profits of the'property to his own use may be required to account to his cotenants for their respective shares of said rents and profits,” but this presupposes a subletting and is not applicable to the case here. Counsel for appellee contends, however, that the decree should be affirmed, because of the failure of appellants to incorporate in the record the testimony before the auditor. There is no merit in this contention. Appellee’s petition specifically alleges that the use and occupation was by appellants, and the finding of the auditor is to that effect. In other words, the averments of the petition and the finding of the auditor are inconsistent with the idea that the premises were sublet by the eotenants, so that the incorporation of the testimony would have shed no light upon the question involved. It follows that the decree must be reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded. 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_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. CITIZENS’ BANK OF WARRENTON v. MOORE. AMERICAN TRUST CO. v. ALAMANCE RY. CO. Circuit Court of Appeals, Fourth Circuit. July 5, 1927. No. 2618. 1. Equity <§=>409 — Master’s finding, though not binding on court, should not be disregarded, when in accordance with uncontradicted testimony. Though findings of special master were not binding on District Court, they should not have been disregarded when in accordance with testimony which is not contradicted or impeached, and master had advantage of seeing and hearing witnesses. 2. Garnishment <§=>58 — One garnishing funds in custodia legis obtains no rights therein. One garnishing funds which were in custodia legis could obtain no rights therein as result of garnishment. 3. Courts <§=351— Production of bank books may be compelled, and officers required to answer interrogatories (equity rules 58, 62). Under federal equity practice, production of books of bank may be compelled, and officers of bank may be required to answer proper interrogatories under rules 58 and 62. Appeal from the District Court of the United States for the Western District of North Carolina, at Greensboro; Edwin Y. Webb, Judge. Receivership proceedings against the Alamance Railway Company, wherein the Citizens’ Bank of Warrenton intervened claiming part of proceeds of property sold held by American Trust Company subject to orders of court. From a judgment sustaining objections of Warner Moore, and disallowing claim, intervener appeals. Remanded. J. H. Bridgers, of Henderson, N. C., for appellant. O. R. Cunningham and S. S. P. Patteson, both of Richmond, Va., for appellee. Before WADDILL, PARKER, and NORTIICOTT, Circuit Judges. PER CURIAM. The Alamance Railway Company was placed in the hands of a receiver by the District Court for the Western District of North Carolina. Its property was sold, and a part of the proceeds thereof is held by the American Trust Company of Richmond, Va., subject to the orders of thfl court. The Citizens’ Bank of Warrenton intervened and claimed this fund, alleging that it was the pledgee of certain bonds of the railway company, to the payment of which ths fund in controversy should be applied. One Warner Moore contested the claim of the bank, claiming the fund for himself by virtue of a garnishment levied in an action against one Pasehall. The matter was referred to the standing master of the district, who heard the evidence and found in favor of the claim of the bank. Upon exceptions to his report, the District Judge reversed his findings and held that the bank had no rights in the fund. The standing master found as a fact that the bonds in question were pledged to the Bank of Warrenton to secure an indebtedness of the witness Pasehall, and that some time later Pasehall secured possession of the bonds from the bank for the purpose of having an easement for a water lin'e indorsed on them. His conclusion was that the bank had not surrendered its rights in the bonds, but had merely allowed them to be taken out of its possession for a special purpose. The learned trial judge found that the bonds had never been pledged .with the bank, and on the record as presented to us we think that this finding was erroneous. It seems to have been based on the idea that Paschall’s testimony was not worthy of belief, and that the claim of the bank was not supported by oath of its officers in the form of affidavit or otherwise. The judge was mistaken, it seems, in assuming that the petition of the bank was not verified. The original petition was verified, but, through some mistake of the officer, the verified original, instead of a copy, was left with counsel of the opposite party. We cannot tell, of course, how much his conclusion may have been influenced by this error. As to the weight to be given to the testimony of Pasehall, while we agree with the view that the findings of the master were not binding on the court, we do not think that they should have been disregarded, where they were in accordance with testimony which had not been contradicted or impeached, and where the master had had the advantage of seeing and hearing the witnesses. The judge seems to think that Pasehall’s statement in the presence of Clader was a contradiction; but it is manifest that a statement that he owned the bonds is not necessarily inconsistent with his testimony that they had been pledged. We do not think, however, that upon the record as presented we would be justified in rendering any decree in the ease. It does not sufficiently establish the amount of the debt due the bank, nor does it set forth the facts under which the bonds were delivered back to Pasehall with sufficient fullness to enable us to determine whether the bank surrendered its rights in them by that act, nor are the circumstances surrounding the delay in claiming the bonds or the fund in court derived from the sale of the railway set forth sufficiently to enable us to determine whether the bank has been guilty of such laches as would bar the assertion of its claim. Instead of deciding the ease, therefore, we shall remand it to the District Court, with direction that that court hear additional testimony and make a full finding of facts, allowing the parties to so amend their pleadings as may be proper to present fully the facts upon which they rely. If Warner Moore desires to claim the fund in controversy, he should file a petition setting forth the facts upon which his claim is grounded. As the fund is in custodia legis, it would seem reasonably clear that he obtained no rights therein as a result of the garnishment upon which he seems to rely. See 23 R. C. L. 68; note 71 Am. St. Rep. 372. We call attention to the fact that, so far as we can gather from the very incomplete record before us, the fund in controversy does not represent the proceeds of the sale of bonds, as was assumed both by the master and the District Judge, but is a part of the proceeds of the railway sold by the receiver under'order of court, and before the holders of bonds should be held entitled to the fund it should appear that the bonds held by them were validly issued and held, and constituted a valid lien upon the property. We say this because Pasehall testified that the bonds were issued to “take up slack” in some of his financial arrangements. We do not know what was meant by the expression used; but, if the company did not receive value for the bonds, the court should inquire as to whether any person claiming them as pledgee or otherwise is entitled to the fund in controversy which should be distributed among the general creditors of the insolvent street railway, if the bonds do not constitute a valid lien upon its assets. We call attention, also, to the fact that the .procedure applicable in the case is that appropriate to federal suits in equity. The state statute providing for the use of itemized verified statements of account, upon which the bank seems to rely, has no application. Under the federal equity practice there need be no trouble about the production of the books of the bank, as such production may be compelled, and the officers of the bank may be required to answer proper interrogatories, under equity rules 58 and 62. We suggest, further, that in the future progress of the cause the American Trust Company of Richmond, if it has not already done so, appear and make the necessary defense, looking to the ascertainment of the rights of the parties in litigation, arising under the trust. The cause will be remanded to the District Court for further proceedings in accordance with this opinion. Remanded. 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_method	I	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. SLATTERY v. MARRA BROS., Inc. MARRA BROS., Inc. v. WM. SPENCER & SON CORPORATION. No. 89, Docket 21804. United States Court of Appeals Second Circuit Argued Dec. 7, 1950. Decided Jan. 4, 1951. Purdy, Lamb & Catoggio, New York City (Edmund F. Lamb and Thomas J. Irving, New York City, of counsel), for plaintiff. Abraham M. Fisch, New York City (Sidney Schiffman, New York City, of counsel), for plaintiff-appellee. Charles Landesman, New York City (Sol Deutsch, New York City, of counsel), for defendant-appellee. Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges. L. HAND, Chief Judge. Marra Bros., Inc., appeals from that part of a judgment, entered on the verdict of a jury which awarded damages to the plaintiff for injuries suffered while Ise was at work as a member of a stevedoring gang upon a pier in New Jersey. It also appeals from the remainder of the judgment which dismissed an amended complaint served by it against Wm. Spencer & Son Corporation under Rule 14(a), Fed.Rules Civ.Proc., 28 U.S.C.A., and which demanded that the Spencer Company indemnify it for any damages that the plaintiff might recover. It will be most convenient to consider first the action of Slattery v. Marra, as though it stood alone; and then the “third party action” of Marra v. Spencer. Slattery v. Marra Bros., Inc. The defendant was the lessee of a New Jersey pier, alongside of which on the day of the accident lay a lighter which the Spencer & Son Corporation, a stevedore, had engaged to lade. There was a shed on the pier, whose side towards the slip was made up of a number of metal doors that had to be raised to gain access to the slip. These opened by sliding up and down vertically, each being raised by a chain and block, affixed as follows. At the centre of the door was fastened a vertical plate — a “fish-plate” — the top of which was above the top of the door, and at whose end was a hole. When the door was to be raised, the proper way was to pass the straight bar or bolt of a “shackle” through this hole, and to fix the other member of the “shackle” upon it. Into the “shackle” so completed a hook at the end of the block could then be inserted and the door be raised by a chain passing from the block over a pulley fastened to the ceiling and down within reach of men, standing on the floor of the pier. On the day of the accident no “shackle” had been fixed through the hole in the “fish-plate,” but instead, the hook at the end of a block had been pushed into the hole, which was too big to go clear through it, although the tip of it apparently went in far enough to allow the door to have been lifted in the past. At any rate one of the plaintiff’s witnesses swore that he had seen the door so rigged four weeks before the accident. On the afternoon of the day in question a gang of stevedores employed by the Spencer Company, among whom was Slattery, the plaintiff, went to- the pier, and found the door in question raised about two feet from the floor of the dock and held by the hook. Slattery and the gang boss went under it to the “string piece,” as others of the gang were raising it, and started back before the gang had finished doing so. While Slattery was passing under it the second time, the hook became disengaged from the hole in the “fish-plate” and dropped to the floor, pinning his leg and doing the injuries for which he sued. The defendant raises a number of objections to the judgment. First, it says that, since Slattery was only a “business guest” or “invited person,” and since the danger was open and apparent, as lessee of the premises, it owed him no duty. Next it says that the judge was wrong in describing its duty to the jury, if the danger was not open and apparent, because he did not limit it to reasonable precautions, but imposed an absolute liability. Lastly, it complains of several incidents during the course of the trial including rulings upon the evidence. We shall take these up in that order. It is the generally accepted doctrine that one, who is in possession of real property, owes to a “business guest” or “invited person” no greater duty than to advise him of any dangers which reasonable prudence would have foreseen and corrected. Since the accident happened in New Jersey, the law of that state determined the 'liability; but apparently, its law also is that, if the “invited person” is made aware of the danger, the possessor of the premises owes him no 'further duty. Since the defendant did not advise Slattery of the faulty way in which the door was rigged, and had no reason to assume that he would notice it, it was liable to him, provided that its failure to give him notice was an actionable cause of his injury. It answers that its failure was not an actionable cause, because the employees of the Spencer Company were themselves negligent in trying to raise the door, rigged as it was. Negligent indeed they were, but their negligence is irrelevant in deciding whether the defendant was liable to Slattery, unless it was justified in assuming that whoever had occasion to raise the door, would notice the danger, and would be sure to substitute a “shackle,” of which there were plenty on the pier. Obviously the jury was justified in finding that a reasonable person who thought about it at all, would realize that a gang of stevedores who had to open such a door and found it fastened as it was, might well take the chance of using it as it was. The intervening wrong of a third person is no longer considered as “breaking the causal chain,” or making the first wrong a “remote,” and not a “proximate,” cause, for all those preceding events, without which any later event would not happen, are “causes.” What really matters is how far the first wrongdoer should be charged with forecasting the future results of his conduct; and the intervention of a later wrong is no different from the intervention of any other event. Section 449 of the Restatement of Torts states the present doctrine as it is now generally accepted, and we know of no reason to suppose that the courts of New Jersey would not follow it. The defendant’s next objection is to the charge, which, however, quite conformed to what we have just said, as appears from the following excerpts. “A careless person is liable for all the natural and probable consequences of his misconduct. If the misconduct is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause, the intervening cause will not excuse him, and the subsequent mischief will be held to be the result of the original misconduct.” Applying this to the case at bar the judge added: “Ought Marra Brothers in this instance to have reasonably foreseen that if the door was pulled up without the use of a shackle that injury might occur?” The next objection is that at the close of the plaintiffs examination, as he was about to step down, the judge, sua sponte, asked him the following questions: “Are you married?” and have you “any children”? To the first question he answered “yes” and to the second, “six.” He was excused and the defendant’s attorney made no objection, nor did he ask for any ruling on the matter at any time, although the trial went on for several days. The only later occasion on which the answers could be thought to have been important was during the address to the jury of the plaintiff’s attorney, in which he spoke of the plaintiff’s inability to play with his children as an element of damages. The defendant objected, the court answered that that was not an element of damages, and there then followed a colloquy, irrelevant to this particular testimony. The law in federal courts is well settled that such testimony is irrelevant, beginning with Pennsylvania Company v. Roy; and we have ourselves three times so ruled, in the third instance making it the only ground for reversal. Other circuits have so held; and the same is true of some at any rate of the state courts, though on such matters these would not be relevant unless they were in New York and more liberal than the federal doctrine. Rule 43(a). The defendant, recognizing that it did not object at any stage, invokes the doctrine that in cases of grave prejudice we should reverse a judgment even when the aggrieved party has made no objection. We are not disposed to class this as such a situation; indeed in 1897 we refused to do so just because the defendant had not objected in a more extreme case. New York Electric Equipment Co. v. Blair, supra, 79 F. at page 899. Next is an objection to testimony that on the day after the plaintiff’s accident the superintendent sent a workman to the door, and had him rig a “shackle” in the hole in the “fish-plate.” The well settled rule that repairs made after an accident are not competent evidence of negligence has an exception, recognized by New York decisions, which Rule 43(a) in this case makes authoritative, because they admit the evidence, that, if the control of the cause of the injury when it happened is in issue, evidence of later conduct relevant to control is competent; and in this instance the defendant’s control over the rigging of the door was in issue. True, it did concede that it had what it insisted upon calling “general control” of the pier; but it would not concede that it had control of the door. It said: “We admit we occupied the pier. We deny control in so far as it relates to particular control.” The only meaning which can be given this is that it denied control over the rigging of the “shackle”on the door. There remain only two other objections: first, to the cross-examination of the defendants’ medical expert, and second, to the exposure to the jury of the plaintiff’s injured leg. The first is so completely without foundation that we shall not discuss it; the second lay within the trial judge’s discretion, and we can find nothing to indicate any abuse of it. It is sometimes said that the jury should not be allowed to see repulsive injuries since they may excite their emotions. That may at times be true; but ordinarily it would seem that the very hideousness of the deformity was a part of the suffering of the victim, and could not rationally be excluded in the assessment of his damages. The judgment in favor of Slattery will be affirmed. Marra Bros., Inc. v. Spencer & Son Corporation This appeal, as we have said, is from the dismissal of an amended complaint, in consequence of which the Spencer Company did not appear at the trial and the cause comes to us upon the complaint alone. The theory on which the complaint was drawn is that, if Slattery recovered from Marra Bros., Inc. because of defects in the way the door was rigged, it would be “because of the primary fault and neglect” of the Spencer Company, whose employees “were negligent among other things in that they used and employed defective, unsafe and dangerous appliances * * * more particularly for the purpose of lifting or opening the door”; and that this would entitle Marra Bros., Inc., not to contribution, but to full indemnity. In considering the legal effect of these allegations we take judicial notice of the New Jersey Workmen’s Compensation Act, of which § 34:-15-7 N.J.S.A. provides that “When employer and employee shall by agreement, either express or implied * * * accept the provisions of this article” the employer shall pay compensation regardless of his negligence; and § 34:15-8 provides that “Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation”. Finally § 34:15-9 provides that “Every contract of hiring * * * shall be presumed to have been made with reference to * * * this article”, unless the parties shall have provided in writing to the contrary. We are therefore to assume that Slattery’s contract of employment with the Spencer Company was a “surrender * * * of * * * any other method, form or amount of compensation” for any injuries which he might receive “in the course of his employment”; and the Spencer Company was under no liability to him of any kind. Therefore, the right of Marra Bros., Inc., to indemnity from the Spencer Company cannot rest upon any liability of that company to Slattery; and, if it exists at all, it is hard to see how it can arise in the absence of some legal transaction between the two corporations, other than that of joint tortfeasors: such as contract — as was the case in Burris v. American Chicle Co., 2 Cir., 120 F.2d 218, and Rich v. United States, 2 Cir., 177 F.2d 688 — or as tort — as was the case in Westchester Lighting Co. v. Westchester Estates Corp., 278 N.Y. 175, 15 N.E.2d 567. Yet it is true, at least when the putative indemnitor is not protected by a compensation act, that courts have at times based indemnity merely upon a difference between the kinds of negligence of the two tortfeasors; as for instance, if that of the indemnitee is only “passive,” while that of the indemnitor is “active.” Such cases may perhaps be accounted for as lenient exceptions to the doctrine that there can be no contribution between joint tortfeasors, for indemnity is only an extreme form of contribution. When both are liable to the same person for a single joint wrong, and contribution, stricti jwris, is impossible, the temptation is strong if the faults differ greatly in gravity, to throw the whole loss upon the more guilty of the two. The only decision we have found in New Jersey —the decision of a “Commissioner” — was one in which the only fault of the indemnitee was its failure to observe that the in-demnitor had failed properly to set the tire of a motor truck; and the result could have been put equally well upon a breach of the indemnitor’s contract to set the tire. However that may be, we shall assume that, when the indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that that result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. If so, when one of the two is not so liable, the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two. However, in the case at bar, not only was the Spencer Company not liable to Slattery, but it had no contract with Marra Bros., Inc., or any other legal relation with it except that of joint tortfeasor. Unless therefore there be some controlling authority to the contrary, the amended complaint was rightly dismissed. There is no such authority: none whatever in New Jersey, and none outside to which we think its courts would feel bound to yield. In American Mutual Liability Ins. Co. v. Matthews, 2 Cir., 182 F.2d 322, we held that a shipowner, who had been held liable to a longshoreman for defect of the ship’s tackle, should not have contribution against the longshoreman’s employer because of the employer’s negligence in performing a stevedoring contract with the shipowner. We so decided because we held that it was not a breach of the employer’s contract for him to use defective tackle supplied by the shipowner; and it was only upon a breach of contract that the shipowner could rely. The decision of the Ninth Circuit in United States v. Rothschild International Stevedoring Co., 183 F.2d 181, can indeed hardly be reconciled with ours, for we can see no more reason to hold that it was a breach of the stevedore’s contract with the ship to use a winch known to be defective than to use a defective stay. However, it is not clear that the decision did not presuppose that the stevedore failed in the performance of its contract with the ship; in which event the only difference between us is in the interpretation of such a contract. In any event it is not certain that the result would have been the same, had there been no contract whatever between the two. The decision of the same circuit in Booth-Kelly Lumber Co. v. Southern Pacific Co., 9 Cir., 183 F.2d 902, is not relevant, because it was expressly based upon a contract between the two tortfeasors; and incidentally it was the employer who was the indemnitee. The decision of the Eighth Circuit in American District Telegraph Co. v. Kittleson, 179 F.2d 946, can well be rested upon the employer’s undertaking to the contractor to furnish the contractor’s men with a safe place to work, whose breach was the cause of the injury to one of the employer’s workmen. As we have already said, Westchester Lighting Co. v. Westchester Estates Corp., supra, can also rest upon the tort which the indemnitor committed against the indemnitee. So far as we can see therefore there is nobody of sure authority for saying that differences in the degrees of fault between two tortfeasors will without more strip one of them, if he is an employer, of the protection of a compensation act; and we are at a loss to see any tenable principle which can support such a result. As always, it is embarrassing to have to pass upon the law of a state whose courts have not decided the question. However, in cases depending upon the “diversity jurisdiction” that often happens; we are then forced to prophecy, and in the case at bar our best forecast is that under the law of New Jersey the complaint was properly dismissed. Judgment affirmed as to both causes of action. . Restatement of Torts, § 343. . Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194. . 102 U.S. 451, 26 L.Ed. 141. . New York Electric Equipment Co. v. Blair, 2 Cir., 79 P. 896; Chesapeake & Ohio Ry. v. Stojanowski, 2 Cir., 191 P. 720; Lacorazzo v. Cantalupo, 2 Cir., 210 P. 875. . Baltimore & Ohio R. R. Co. v. Camp, 6 Cir., 81 P. 807; Chicago & Northwestern Ry. v. Kelly, 8 Cir., 74 P.2d 31; Southern Pacific Co. v. Ralston, 10 Cir., 67 F.2d 958. . 2 Cir., 79 F. 896. . Wigmore, § 283. . Scudero v. Campbell, 288 N.Y. 328, 43 N.E.2d 66; Noble v. Marx, 298 N.Y. 106, 81 N.E.2d 40. . Sun Oil Co. v. Rhodes, 8 Cir., 15 F.2d 790; Clark v. Brooklyn Heights R. R. Co., 177 N.Y. 359, 69 N.E. 647. . Popkin Brothers, Inc., v. Volk’s Tire Co., 23 A.2d 162, 20 N.J.Misc. 1. . 278 N.Y. 175, 15 N.E.2d 567. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
sc_casesource	023	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. UNITED STATES v. HENRY No. 79-121. Argued January 16, 1980 Decided June 16, 1980 Burger, C. J., delivered the opinion of the Court, in which BreNNAN, Stewart, Marshall, Powell, and Stevens, JJ., joined. Powell, J., filed a concurring opinion, post, p. 275. Blackmun, J., filed a dissenting opinion, in which White, J., joined, post, p. 277. RehNquist, J., filed a dissenting opinion, post, p. 289. Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, and Edwin S. Kneedler. Michael E. Geltner argued the cause for respondent. With him on the brief were Larry J. Ritchie and William W. Greenhalgh. Me. Chief Justice Burgee delivered the opinion of the Court. We granted certiorari to consider whether respondent’s Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody. 444 U. S. 824 (1979). I The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one “Allen It. Norris” and a lease, also sighed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunmen. Government agents traced the rent receipt to Henry; on the basis of this information, Henry was arrested in Atlanta, Ga., in November 1972. Two weeks later he was indicted for armed robbery under 18 U. S. C. §§2113 (a) and (d). He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27. On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery. Nichols informed the agent that he was housed in the same cellbloclc with several federal prisoners awaiting trial, including Henry. The agent told him to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question Henry regarding the bank robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank. Nichols was paid for furnishing the information. When Henry was tried in March 1973, an agent of the Federal Bureau of Investigation testified concerning the events surrounding the discovery of the rental slip and the evidence uncovered at the rented house. Other witnesses also connected Henry to the rented house, including the rental agent who positively identified Henry as the “Allen R. Norris” who had rented the house and had taken the rental receipt described earlier. A neighbor testified that prior to the robbery she saw Henry at the rented house with John Luck, one of the two men who had by the time of Henry’s trial been convicted for the robbery. In addition, palm prints found on the lease agreement matched those of Henry. Nichols testified at trial that he had “an opportunity to have some conversations with Mr. Henry while he was in the jail,” and that Henry told him that on several occasions he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant. On the basis of this testimony, Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years. On appeal, he raised no Sixth Amendment claims. His conviction was affirmed, judgt. order reported at 483 F. 2d 1401 (CA4 1973), and his petition to this Court for a writ of cer-tiorari was denied. 421 U. S. 915 (1975). On August 28, 1975, Henry moved to vacate his sentence pursuant to 28 U. S. C. § 2255 At this stage, he stated that he had just learned that Nichols was a paid Government informant and alleged that he had been intentionally placed in the same cell with Nichols so that Nichols could secure information about the robbery. Thus, Henry contended that the introduction of Nichols’ testimony violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion without a hearing. The Court of Appeals, however, reversed and remanded for an evidentiary inquiry into “whether the witness [Nichols] was acting as a government agent during his interviews with Henry.” On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent’s relationship with Nichols and relating the following conversation: “I recall telling Nichols at this time to be alert to any statements made by these individuals [the federal prisoners] regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry.” The agent’s affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry. The District Court again denied Henry’s § 2255 motion, concluding that Nichols’ testimony at trial did not violate Henry’s Sixth Amendment right to counsel. The Court of Appeals reversed and remanded, holding that the actions of the Government impaired the Sixth Amendment rights of the defendant under Massiah v. United States, 377 U. S. 201 (1964). The court noted that Nichols had engaged in conversation with Henry and concluded that if by association, by general conversation, or both, Nichols had developed a relationship of trust and confidence with Henry such that Henry revealed incriminating information, this constituted interference with the right to the assistance of counsel under the Sixth Amendment. 590 F. 2d 544 (1978). II This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are “critical stages” of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. See, e. g., United States v. Ash, 413 U. S. 300 (1973); United States v. Wade, 388 U. S. 218 (1967). The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry’s incriminating statements as voluntary and not the result of any affirmative conduct on the part of Government agents to elicit evidence. From this, the Government argues that Henry’s rights were not violated, even assuming the Sixth Amendment applies to such surreptitious confrontations; in short, it is contended that the Government has not interfered with Henry’s right to counsel. This Court first applied the Sixth Amendment to postindictment communications between the accused and agents of the Government in Massiah v. United States, supra. There, after the accused had been charged, he made incriminating statements to his codefendant, who was acting as an agent of the Government. In reversing the conviction, the Court held that the accused was denied “the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicted from him.” Id., at 206. The Massiah holding rests squarely on interference with his right to counsel. The question here is whether under the facts of this case a Government agent “deliberately elicited” incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols. The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry’s suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information. This combination of circumstances is sufficient to support the Court of Appeals’ determination. Even if the agent’s statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead' to that result. The Government argues that the federal agents instructed Nichols not to question Henry about the robbery. Yet according to his own testimony, Nichols was not a passive listener; rather, he had “some conversations with Mr. Henry” while he was in jail and Henry’s incriminatory statements were “the product of this conversation.” While affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded, as the Government contends, that Brewer v. Williams, 430 U. S. 387 (1977), modified Massiah’s “deliberately elicited” test., See Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980). In Massiah, no inquiry was made as to whether Massiah or his codefendant first raised the subject of the crime under investigation. It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed. In Hoffa v. United States, 385 U. S. 293, 302 (1966), for example, this Court held that “no interest legitimately protected by the Fourth Amendment is involved” because “the Fourth Amendment [does not protect] a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” See also United States v. White, 401 U. S. 745 (1971). Similarly, the Fifth Amendment has been held not to be implicated by the use of undercover Government agents before charges are filed because of the absence of the potential for compulsion. See Hoffa v. United States, swpra, at 303-304. But the Fourth and Fifth Amendment claims made in those cases are not relevant to the inquiry under the Sixth Amendment here — whether the Government has interfered with the right to counsel of the accused by “deliberately eliciting” incriminating statements. Our holding today does not modify White or Hoffa. It is undisputed that Henry was unaware of Nichols’ role as a Government informant. The Government argues that this Court should apply a less rigorous standard under the Sixth Amendment where the accused is prompted by an undisclosed undercover informant than where the accused is speaking in the hearing of persons he knows to be Government officers. That line of argument, however, seeks to infuse Fifth Amendment concerns against compelled self-incrimination into the Sixth Amendment protection of the right to the assistance of counsel. An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then “arm’s-length” adversaries. When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah, Court noted that if the Sixth Amendment “is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.” The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent. 377 U. S., at 206. Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. See Johnson v. Zerbst, 304 U. S. 458 (1938). In that setting, Henry, being unaware that Nichols was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to. the assistance of counsel. Finally, Henry’s incarceration at the time he was engaged in conversation by Nichols is also a relevant factor. As a ground for imposing the prophylactic requirements in Miranda v. Arizona, 384 U. S. 436, 467 (1966), this Court noted the powerful psychological inducements to reach for aid when a person is in confinement. See also id., at 448-454. While the concern in Miranda was limited to custodial police interrogation, the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents. The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols’ conduct and apparent status as a person sharing a common plight. That Nichols had managed to gain the confidence of Henry, as the Court of Appeals determined, is confirmed by Henry’s request that Nichols assist him in his escape plans when Nichols was released from confinement. Under the strictures of the Court’s holdings on the exclusion of evidence, we conclude that the Court of Appeals did not err in holding that Henry’s statements to Nichols should not have been admitted at trial. By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry’s Sixth Amendment right to counsel. This is not a case where, in Justice Cardozo’s words, “the constable . . . blundered,” People v. DeFore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926); rather, it is one where the “constable” planned an impermissible interference with the right to the assistance of counsel. The judgment of the Court of Appeals for the Fourth Circuit is Affirmed. The record does disclose that on November 21, 1972, the same day the agent contacted Nichols, the agent’s supervisor interrogated Henry at the jail. After denying participation in the robbery, Henry exercised his right to terminate the interview. Henry also asked Nichols if he would help him once Nichols was released. Henry requested Nichols to go to Virginia Beach and contact a woman there. He prepared instructions on how to find the woman and wanted Nichols to tell her to visit Henry in the Norfolk jail. He explained that he wanted to ask the woman to carry a message to his partner, who was incarcerated in the Portsmouth city jail. Henry also gave Nichols a telephone number and asked him to contact an individual named “Junior” or “Nail.” In addition Henry asked Nichols to provide him with a floor plan of the United States Marshals’ office and a handcuff key because Henry intended to attempt an escape. Joseph Sadler, another of Henry’s cellmates, also testified at trial. He stated that Henry had told him that Henry had robbed a bank with a man named “Lucky” or “Luck.” Sadler testified that on advice of counsel he informed Government agents of the conversation with Henry. Sadler was not a paid informant and had no arrangement to monitor or report on conversations with Henry. In his § 2255 petition, Henry also alleged that Sadler’s testimony was perjurious; that the Government failed to disclose Brady material, see Brady v. Maryland, 373 U. S. 83 (1963); that the United. States Attorney’s argument to the jury was impermissibly prejudicial; and that his trial counsel was incompetent. The District Court rejected each of these grounds, and none of these issues is before this Court. The Court of Appeals acknowledged that the testimony of Sadler, another cellmate of Henry, supported the conviction but was not willing to conclude beyond a reasonable doubt that Nichols’ testimony did not influence the jury. Chapman v. California, 386 U. S. 18, 24 (1967). Although both the Government, and Mr. Justice Rehnquist in dissent, question the continuing vitality of the Massiah branch of the Sixth Amendment, we reject their invitation to reconsider it. The affidavit of the agent discloses that “Nichols had been paid by the FBI for expenses and services in connection with information he had provided” as an informant for at least a year. The only reasonable inference from this statement is that Nichols was paid when he produced information, not that Nichols was continuously on the payroll of the FBI. Here, the service requested of Nichols was that he obtain incriminating information from Henry; there is no indication that Nichols would have been paid if he had not performed the requested service. Two aspects of the agent’s affidavit are particularly significant. First, it is clear that the agent in his discussions with Nichols singled out Henry as the inmate in whom the agent had a special interest. Thus, the affidavit relates that “I specifically recall telling Nichols that he was not to question Henry or these individuals” and “I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges,” but to “pay attention to the information furnished by Henry.” (Emphasis added.) Second, the agent only instructed Nichols not to question Henry or to initiate conversations regarding the bank robbery charges. Under these instructions, Nichols remained free to discharge his task of eliciting the statements in myriad less direct ways. The situation where the “listening post” is an inanimate electronic device differs; such a device has no capability of leading the conversation into any particular subject or prompting any particular replies. See, e. g., United States v. Hearst, 563 F. 2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U. S. 1000 (1978). However, that situation is not presented in this case, and there is no occasion to treat it; nor are we called upon to pass on the situation where an informant is placed in close proximity but makes no effort to stimulate conversations about the crime charged. No doubt the role of the agent at the time of the conversations between Massiah and his codefendant was more active than that of the federal agents here. Yet the additional fact in Massiah that the agent was monitoring the conversations is hardly determinative. In both Massiah and this case, the informant was charged with the task of obtaining information from an accused. Whether Massiah's codefendant questioned Massiah about the crime or merely engaged in general conversation about it was a matter of no concern to the Massiah Court. Moreover, we deem it irrelevant that in Massiah the agent had to arrange the meeting between Massiah and his codefendant while here the agents were fortunate enough to have an undercover informant already in close proximity to the accused. This is not to read a “custody” requirement, which is a prerequisite to the attachment of Miranda rights, into this branch of the Sixth Amendment. Massiah was in no sense in custody at the time of his conversation with his eodefendant. Rather, we believe the fact of custody bears on whether the Government “deliberately elicited” the incriminating statements from Henry. This is admittedly not a case such as Massiah where the informant and the accused had a prior longstanding relationship. Nevertheless, there is ample evidence in the record which discloses that Nichols had managed to become more than a casual jailhouse acquaintance. That Henry could be induced to discuss his past crime is hardly surprising in view of the fact that Nichols had so ingratiated himself that Henry actively solicited his aid in executing his next crime — his planned attempt to escape from the jail. The holding of the Court of Appeals that this was not harmless error is on less firm grounds in view of the strong evidence against Henry, in-eluding the testimony of a neutral fellow inmate, Henry's rental of the hideaway house, and his presence there with the other participants in the robbery before the crime. The Government, however, has not argued that the error was harmless, and on balance, we are not inclined to disturb the determination of the Court of Appeals. Although it does not bear on the constitutional question in this case, we note that Disciplinary Rule 7-104 (A) (1) of the Code of Professional Responsibility provides: “ (A) During the course of his representation of a client a lawyer shall not: “(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” See also Ethical Consideration 7-18. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Jack J. BRUCE, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee. No. 17508. United States Court of Appeals Fifth Circuit. April 20, 1959. William R. Tete, Lake Charles, La., for appellant. John A. Hickman, Lawes, Cavanaugh, Hickman & Brame, Lake Charles, La., for appellee. Before RIVES, JONES and WISDOM, Circuit Judges. WISDOM, Circuit Judge. There are two aspects to the question at issue on this appeal: (1) What is an “executive officer”, as that term is used in a public liability insurance policy covering a large oil company and its executive officers? (2) Is the question a matter for the court to decide on a motion for summary judgment or for a jury to decide after a trial? Jack Bruce, plaintiff-appellant, was employed as a roughneck by the Gulf Drilling and Well Service. Bruce’s employer, was engaged in reworking an oil well for Gulf Refining Co. (Gulf), a company unrelated to Bruce’s employer, when Bruce was injured as the result of negligence on the part of a Gulf employee, H. J. Collins. It is conceded that Bruce is entitled to recover from Gulf under the Louisiana Workmen’s Compensation Law. LSA-R.S. 23:1061. As the employee of an independent contractor, he is barred from recovering damages from Gulf in tort. Travelers Insurance Company carries a public liability insurance policy on Gulf that also provides extended coverage for “any executive officer, director or stockholder * * * while acting within the scope of his duties”. Bruce brought suit for personal injuries against Travelers, under the Louisiana Direct Action Statute, as the insurer of Collins. LSA-R.S. 22:655. The theory of the complaint is that Collins was an executive officer of Gulf, since he was “invested with the general conduct and control of the business of Gulf Refining” at the well location. Travelers filed a motion for a summary judgment, and introduced affidavits, depositions, and Gulf’s charter and by-laws to show that Collins was not an executive officer of Gulf. The plaintiff offered no counter-affidavits or depositions, taking the position that he was entitled to have the jury determine whether Collins was an executive officer. The trial judge found that the Gulf area superintendent assigned Collins to work as a drilling foreman (a “tool pusher” or “ramrod”, in the jargon of the oil industry), and that Collins was at all times under the supervision of the area superintendent. Collins’ job, the trial judge stated, consisted “primarily in seeing that the contractor performed his duties, as outlined in the contract, to insure that the equipment furnished on location by Gulf Refining Company was not misused or damaged, and to see that the contractor exercised all necessary precautions to control the well”. Collins was never elected or chosen by the Board of Directors of Gulf as an officer with any term of office, powers or duties, or salary fixed by the Board.- On these findings the trial judge held: “We reach the inescapable conclusion that Collins was not an executive officer. If a jury were to hold otherwise I would, under the law, feel it my duty to set the verdict aside, because there is no issue of fact to be submitted to a jury on the decisive issue of coverage.” The court granted the motion for a summary judgment and dismissed the complaint. We affirm. I. Paragraph 26 of Gulf’s by-laws specifically names the officers of Gulf and provides that the officers must be elected by the board of directors. It reads: “The officers of the corporation shall be chosen by the directors and shall be a chairman of the board, a president, one or more vice-presidents, a secretary, a treasurer, a comptroller and a general counsel. The board of directors may also choose one or more assistant secretaries, assistant treasurers and assistant comptrollers. Two or more offices may be held by the same person, except that where the offices of president and secretary are held by the same person, such person shall not hold any other office.” Paragraph 28 provides that the Board of Directors may appoint such “other officers” as it shall deem necessary. They hold office for such terms and exercise such powers as the Board determines. Paragraph 32 of the by-laws provides that the president of the corporation shall be the “chief executive officer” of the corporation. This language is free from ambiguity. The intention of these provisions of the by-laws is clearly to allow the corporation to determine for itself what persons shall be officers and how they shall be chosen. In this case such intention does not conflict with any statute nor does the denomination of certain persons as officers cut across any statutory use of the term “officers” having a broad frame of reference. No court in this part of the world can ignore the common knowledge that a large oil company having thousands of employees and representatives has hundreds of employees and representatives in positions of great responsibility. But tool pushers, ramrods, supervisors, drilling superintendents, area superintendents, or other employees having responsible duties are not officers, under the unambiguous by-laws of Gulf Refining Company. Nor can it be said a tool pusher or a ramrod or a supervisor at a well location functions in an executive capacity, as “executive officer” is understood in the ordinary acceptance of the term. The term implies some sort of managerial responsibility for the affairs of the corporation generally and it imports a close connection with the board of directors and high officers of the company. Insurance policies should be construed liberally, but the words of a policy must be given the meaning they ordinarily bear. “No strained or unusual construction should be given to any of the terms of a policy of insurance, in favor of the insurer or of the insured”. Empire Life Insurance Co. v. Gee, 1912, 178 Ala. 492, 60 So. 90, 92. Or, we add, in favor of a third party claimant. The distinction between an agent or employee and an officer is not determined by the nature of the work performed, but by the nature of the relationship of the particular individual to the corporation. The principle is well stated in 13 American Jurisprudence, par. 866, p. 854: “The relationship of a person to a corporation, whether as officer or as agent or employee, is not determined by the nature of the services performed, but by the incidents of the relationship as they actually exist. * * * One distinction between officers and agents or employees of a corporation lies in the manner of their creation. An office is created usually by the charter or by-laws of the corporation, while an agency or employment is created usually by the officers. A further distinction may thus be drawn between an officer and an employee of a private corporation in that the latter is subordinate to the officers and under their control and direction.” Many cases have applied this principle. Thus, in Vardeman v. Penn Mutual Life Ins. Co., 1906, 125 Ga. 117, 54 S.E. 66, 67 the court held: “One distinction between officers and agents of a corporation lies in the manner of their creation. An officer is created by the charter of the corporation, and the officer is elected by the directors or the stockholders. An agency is usually created by the officers, or one or more of them, and the agent is appointed by the same authority. It is clear that the two terms officers and agents are by no means interchangeable.” In Cosgriff v. Duluth Firemen’s Relief Ass’n, 1951, 233 Minn. 233, 46 N.W.2d 250, the court held that even a trustee of a firemen’s relief association was not an executive officer. Rosenblum v. N. Y. Central R. R. Co., 1948, 162 Pa. Super. 276, 57 A.2d 690, 691 was a suit for specific performance to compel the New York Central to transfer land on a contract signed by a land agent for the railroad. Written authority was required for contracts in the name of the corporation, except contracts signed by executive officers. The Court held that the land agent was not an executive officer and pointed out that “the executive officers of a corporation are officers of the entity, and not officials merely of the business conducted by the corporation”. The cases to the contrary are cases in which public policy has impelled courts to give a broad interpretation to a state workmen s compensation act or to some other statute charging a corporation with liability for the acts of its officers. The California and Arkansas compensation laws, in the eases cited by appellant, use the term “executive or managing officer”. In Horst Co. v. Industrial Accident Commission of California, 1920, 184 Cal. 180, 193 P. 105, 109, 16 A.L.R. 611, however, the California court observed that the terms “executive officer” and “managing officer” are not synonymous ; that an “executive officer” is elected in accordance with the charter or by-laws; that the statute initially used the term “executive officers” but was amended by adding “managing officer, and has not specified that the officer shall be an elective one * * * [so that it is] clear * * * that the legislature by this section did not use ‘officer’ in its technical legal sense”. The way in which the complaint is framed — Bruce against Gulf’s insurer— tends to obscure the decisive fact that Bruce’s claim is against Collins, not against Gulf. The case, therefore, does not depend on the liability of the corporation for the acts of officers nor does it turn on disputed facts as to an officer’s delegated authority and whether certain acts were within the scope of the officer’s authority. The decision depends on a correct reading of the intention of Gulf and Travelers as they expressed their intention in their insurance agreement, a matter peculiarly within the province of a court. Gulf and Travelers agreed that the extended coverage would apply to executive officers. The best place to look for evidence of that intention is in Gulf’s charter and by-laws defining and denominating officers. Appellant concedes that Collins was not an “executive officer”, as that term is defined and denominated in the charter and by-laws. Appellant has not offered to prove that the parties intended another meaning. His argument, in effect, is that other persons, members of a jury, might understand “executive officer” differently — by attaching controlling importance to the fact (undisputed) that Collins had some supervisory duties at the well where the plaintiff was injured. That argument by-passes the intention of the parties and attempts to shift the judicial function from the court to the jury. II. Appellant argues that a summary judgment was improper: the jury should decide whether Collins was an “executive officer”. Appellant relies strongly on Gianfala v. Texas Co., 1955, 350 U.S. 879, 76 S.Ct. 141,100 L.Ed. 775, rehearing denied 350 U.S. 960, 76 S.Ct. 346, 100 L.Ed. 834, reversing this Court, 5 Cir., 222 F.2d 382. In that case the Supreme Court held that it was for the jury to decide whether, under the Jones Act, 46 U.S.C.A. § 688, Gianfala was a seaman. Whatever far reaching effects the per curiam opinion in Gianfala has on Jones Act eases, it did not eradicate summary judgments. In Texas Co. v. Savoie, 5 Cir., 1957, 240 F.2d 674, 675, this Court said: “[T]he Supreme Court in Texas Co. v. Gianfala, supra, did not intend to do away with the established federal procedure, whereby in a civil action at law the judge may direct a verdict if there is no issue of fact to be submitted to the jury on a decisive issue; * * The rationale of the Gianfala case was, for purposes of any implications it might have on the use of a motion for summary judgment, that the term “seaman”, “vessel”, and “crew" have no absolute unvarying legal significance under the Jones Act as it is liberally interpreted in the decisions. See Offshore Company v. Robison, 5 Cir., 1959, 266 F.2d 769. Here, however, the preliminary but critical question is the meaning of “executive officer”, as used in a contract and in corporate by-laws where there is no question of the term colliding with a broad statutory reference that would make it susceptible of varying meanings depending on the weight attached to selected conflicting facts and inferences. That question is a proper subject for decision on a motion for summary judgment. Litigants have no difficulty finding expressions urging courts to have a due regard for a cautious observance of the requirements of a summary judgment or, if they are appellees, they may find expressions that summary judgments are looked upon with favor. Barron and Holtzoff, however, make the pertinent observation: “Cases voicing such sentiments as that courts should be slow to grant summary judgment and that any error should be on the side of caution should be limited to their facts. [Rule 56] itself provides that ‘the judgment sought shall be rendered forthwith if * * * there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law.’ ” 3 Barron and Holtzoff, Federal Practice and Procedure, § 1231. Moore states the broad considerations behind Rule 56, Fed.Rules Civ.Proc. 28 U.S.C.A., as follows: “In its broadest scope the summary judgment procedure is in the nature of a pre-trial inquiry brought on by motion of either a claimant or a defending party for a favorable determination that a trial is unnecessary because there is no genuine issue as to any material fact. * * * Some actions and issues may, as a general rule, be more amenable to a summary adjudication than others, such as actions on written contracts. * * * It can not be stressed too strongly that there is no civil action or issue that is immune to summary adjudication; and when general principles have warranted summary judgment has been rendered in all types of civil actions and on all kinds of issues.” 6 Moore’s Federal Practice, 2161-3. Rule 56 is designed for just such a case as is presented by this appeal. The moving party has pierced the allegations in the plaintiff’s pleadings. By affidavits, depositions, and the charter and by-laws of the corporation, the defendant has shown that there are no genuine issues of fact to be tried. The non-moving party has failed or is unable to controvert this evidence with affidavits or depositions of his own. He has made no effort to show how he expeets to prove his case, contenting himself with the bare allegations in the pleadings that Collins was “invested with the general conduct and control” of reworking a well. This is not enough to create a “genuine issue of material fact” and subject the defendant to the burden of a trial. On the state of the record, there is only a question of law at the threshold that is dis-positive of the case. The district court decided properly in favor of the moving party. The judgment is affirmed. . Hall v. Continental Drilling Co., 5 Cir., 1057, 245 F.2d 717; Fontenot v. Stanolind Oil & Gas Co., D.C.La., 344 F.Supp. 818, affirmed 5 Cir., 243 F.2d 574. . See Senko v. La Crosse Dredging Corp., 1957, 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed. 2d 404, rehearing denied 352 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724; Grimes v. Raymond Concrete Pile Co., 1958, 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737, and the four eases cited in the Gianfala per curiam: South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Summerlin v. Massman Construction Co., 4 Cir., 1952, 199 F.2d 715; Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 1953, 202 F.2d 383, and Gahagan Construction Corp. v. Armao, 1 Cir., 1948, 165 F.2d 301, 305. . “Summary judgment is authorized ‘only where the moving party is entitled to judgment as a matter of law, where it is quite clear that the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.’ * * * It is no part of the court’s duty to decide factual issues but only to determine whether there are issues to tried.” Chappell v. Gottsman, 5 Cir., 1950, 186 F.2d 215, 218. .This Court has said, “summary judgments are looked upon with favor, and they will be upheld unless there is some general issue of fact”. United States for Use of Edward E. Morgan Co. v. Maryland Cas. Co., 5 Cir., 1945, 147 F.2d 423, 425. 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_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. Michael Robert SHAFFER, Appellant, v. UNITED STATES of America, Appellee. No. 19624. United States Court of Appeals Fifth Circuit. Oct. 17, 1962. Rehearing Denied Nov. 26, 1962. Frank P. Fullerton, Joseph A. Calamia, El Paso, Tex., for appellant. Frederick J. Morton, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., M. H. Raney, Asst. U. S. Atty., El Paso, Tex., for ap-pellee. Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges. PER CURIAM. This is an appeal from a felony conviction for an “assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse * *.” 18 U.S.C.A. § 113(c). The question involved here is whether the evidence is sufficient to support the trial Court’s finding that the admitted assault was “with intent to do bodily harm.” Under the statute this element distinguishes a felony from a misdemeanor. 18 U.S.C.A. § 113(e). We hold that the evidence is sufficient. At the time of the offense, the defendant, a PFC in the United States Army, was confined in the Stockade at Ft. Bliss, Texas. While out on detail with two other prisoners and accompanied by a guard carrying a 12 gauge sawed-off shotgun, the defendant snatched the gun from the guard and pumped a shell into the chamber. Holding the gun in both hands and waving it back and forth, the defendant asked the other prisoners if they desired to go with him. They replied negatively. Defendant then made his escape after telling the guard and the other prisoners to remain in the latrine for five minutes or he would shoot their heads off. The Court below found that the loaded gun was a dangerous weapon. Not even the defendant could quarrel with this obvious fact. Certainly an instrument of this sort which is capable of inflicting grave bodily harm or death is a dangerous weapon. Obviously, the defendant here did not have a legal justification or excuse for his actions. He was confined in an Army “jail.” To effectuate his escape, he brandished a loaded gun in the presence of others and threatened them with bodily harm should they make any effort to stop him. There can be no real question of proof of an “assault.” The proof of malice is not a necessary ingredient of an assault. Neither is it necessary that there actually be an attempt to commit a battery. It is sufficient if, viewed from the standpoint of the victim, there is an apparent intent to commit a battery coupled with a present ability to do so. These facts were present here. The only possible question is whether there is sufficient evidence to support the finding that the defendant had the requisite “intent to do bodily harm” to his guard or the other prisoners. This is not to be measured by the secret motive of the actor or some undisclosed purpose merely to frighten, not to hurt. This is to be judged objectively from the visible conduct of the actor and' what one in the position of the victim might reasonably conclude. The present ability of the defendant to fire the gun, the fact that he pumped a shell into the chamber, flourished the apparently loaded gun in the presence of the others, and threatened some or all that he would shoot unless they did his bidding was quite ample for the trier to conclude that unless the threat alone was enough, the defendant intended bodily harm. Affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. SANITARY REFRIGERATOR CO. v. WINTERS et al. Circuit Court of Appeals, Seventh Circuit. February 9, 1928. Rehearing Denied March 6, 1928. No. 3935. 1. Patents @=>328 — 1,385,102, claims I, 2, 3, 4, 7, for latch, held not novel in location of keeper and lever or provision for automatic closing of door, but only in structural differences. Winters and Crampton patent, No. 1,385,-102, claims 1, 2, 3, 4, 7, for a latch, held not novel in location of keeper on door jamb and lever on door, or provision for automatic closing of door without regard to position of lever, in view of Kiel patent, No. 564,448, Dent patent, No. 67,506, Charles patent, No. 702,185, Schrader patents, Nos. 1,117,709 and 1,170,685, and War patent, No. 1,250,736, but only in structural differences in keeper, latch member, op both. 2. Patents @=>328 — 1,385,102, claims I, 2, 3, 4, 7, for latch, held infringed. Latch with keeper and latch member located similarly to structure covered by Winters and Crampton patent, No. 1,385,102, claims 1, 2, 3. 4, 7, and head formed with upper and lower curved outer sides coming substantially to a point as in such structure, held infringement of such patent, though lug is placed on near side of bead of keeper having surface curved similarly .to outer surface of head and adapted to contract with arm projecting from handled portion of lever. 3. Patents @=>165(1) — Valid, narrow claim, though strictly construed, should be defined in light of patentee’s meaning and purpose of element in patented structure. While a valid, narrow claim will be strictly construed, its terms and expressions should not necessarily be limited to hard and fast definition, but language should be defined in light of meaning given it by patentee, with appreciation of purpose or object of element in patented structure. Appeal from the District Court of the United States for the Eastern District of Wisconsin. Suit by Alexander F. Winters and another against the Sanitary Refrigerator .Company. Decree for plaintiffs, and defendant appeals. Modified in part, and affirmed in part. See, also, 20 F.(2d) 671. E. Hayward Fairbanks, of Philadelphia, Pa., for appellant. Frank E. Liveranee, Jr., of Grand Rapids, Mich., for appellees. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. EVAN A. EVANS, 'Circuit Judge. A patent, No. 1,385,102, to Winters and Cramp-ton, issued July 19, 1921, covering a latch, was the basis of the instant suit. Seven claims are involved, two of which (5 and 6) are broad, generic claims, while the other five (1, 2, 3, 4, and 7) are narrow, specific claims. The District Court sustained all claims, and found appellant to be an infringer thereof. Thereafter appellees brought suit upon this same patent in the District Court for the Eastern District of Pennsylvania, and the court there held that claims 5 and 6 of the patent were invalid and the other five claims were not infringed by latches similar to the ones made by appellant. Counsel* with commendable frankness, have made concessions in this court which greatly narrow the controverted issues. Appellant admits the validity of claims 1, 2, 3, 4, and 7, while appellees concede that claims 5 and 6 are invalid. The sole issue remaining, in view of these concessions, is one of infringement of the five valid claims. The concession that these five claims are valid was accompanied by the statement that validity was recognized only in view of an asserted construction which gave to each claim so narrow a field that infringement was not disclosed. The inventor said: “This invention relates to a latch of the swinging lever type, particularly adapted for use on refrigerators though applicable in many other relations where a door is to be closed and held in closed position. The swinging lever latch, or as it is better known, the Condit latch, is pivotally connected at one end to the door jamb or casing, allowing the door to be opened when the latch is thrown to an upper vertical position, and coming down across the meeting edges of the casing and door when swung to horizontal position, engaging with a cam member on the door to wedge the door tightly shut. This latch is a very serviceable latch but is relatively hard to Operate due to its attachment to the casing instead of the door, and the same is liable to drop to horizontal position in which ease the door cannot be closed with‘out first raising the lever to upper vertical position while, many times, the door is inadvertently swung toward closed position and against the lever in its horizontal position with injury either to the lever or door or both. In the present invention, it is a primary object and purpose to provide a latch which may be pivotally connected to the door and which is automatically operated to engage with a retaining member or keeper fixed on the door casing when the door is closed irrespective of the vertical or horizontal position of the latch lever, working as well in the one case as the other. A further object of the invention is to construct a latch of few parts, whereby it may be economically made and which will be durable and efficient in service.” Two typical claims are 1 and 7, herewith quoted: “1. In combination, a door and casing therefor, a keeper attached to the casing comprising a base, an outstanding post and a head at the outer portion of the post, said head depending below the post and formed with upper and lower curved outer sides coming substantially to a point and with an inner upwardly and inwardly inclined side, a member attached to the door comprising a •base,. an integral outstanding post projecting from the base and a laterally extending arm at the upper end of the post paralleling the base, and a latch lever pivotally mounted between its ends between the said arm and base of said member, said lever having one arm formed with an under cam side extending from the pivot and adapted to be engaged under the depending portion of the keeper, a handle portion extending in the opposite direction from the pivot and another arm projecting from the handle portion a distance from the pivot and lying substantially at right angles to the first arm of the lever and likewise being formed with an inner cam side, substantially as and for the purposes described.” “7. In combination, a door and a casing therefor, a keeper attached to the casing, a latch lever pivotally mounted on the door between its ends, one end of the lever being formed into an operating handle and the other into a keeper engaging arm, a second arm projecting from the handle portion of the lever a short distance from its pivot and at an angle to the first arm, said keeper being formed at its outer sides for engagement with the respective arms when the lever is in horizontal and vertical positions, respectively,as the door is closed, to automatically operate the lever so that it will engage under the keeper when the door is entirely closed, substantially as described.” While appellees conceded that claims 5 and 6 were invalid in view of the prior art, we would have no hesitancy in so finding in the absence of this admission. Whether the other claims are infringed depends entirely upon the position of the patent in suit in the art. No difficulty would be experienced in finding infringement if the patent were a pioneer or was one covering such an improvement as entitled it to a broad range of equivalency. But the patent does not occupy any such position. It is an extremely narrow one, as a reading of the claims at once discloses. Moreover, the record shows a prior art loaded with latches possessing some of the features of appellee’s latch. Describing appellees’ lateh, counsel say:' “The lateh is attached to the door of the refrigerator and the keeper for the lateh is attached to the door jamb. * * * The swinging lateh of the patent in suit is an automatic latch acting to close and tightly close when the door is moved to shut it irrespective of the position the lateh lever may have whether horizontal or level.” The prior art as disclosed by the Eel patent, No. 564,448, the Dent patent, No. 67,506, and Charles patent, No. 702,185, the Schrader patents, Nos. 1,117,709 and 1,170,-685, the War patent, No. 1,250,736, all refute the contention of asserted novelty, in the location of- the keeper upon the door jamb and the lever upon the door or in providing for the automatic closing of the door without regard to the position of the lever. It may be true that in some of these disclosures because of the law of gravity the lever invariably takes hut one position. In the Dent patent, the keeper was attached to the easing while the member carrying the latch lever was attached to the door. In the Charles lateh, the keeper was on the door while the other member was on the easing. The Eel latch had its keeper on the casing and the latch member on the door. Bach structure, examples of which are in evidence, works automatically when the door is slammed shut whether the latch lever is in a horizontal or a vertical position. It follows, therefore, that patentable novelty, if any exists, is restricted to the particular structure disclosed. What, then, is the novel structure ? In nearly all of the cited prior art structures, the keeper member has a curved post against which a portion of the lever strikes when the door is swung. Patentees (claim 1) describe this portion of the keeper as “an outstanding post and a head at the outer portion of the post, said head depending below the post and formed with upper and lower outer sides coming substantially to a point.” The keeper described in the Eel patent is decidedly similar. The differences between appellees’ lever lateh and the- prior art structures are more pronounced. Automatic operation is dependent upon the cooperation of the lateh and the keeper. Consequently there naturally follow differences in the structural design of one member due to difference in structure of the other member. We repeat, then, that patentable novelty resides in the structural differences of the latches (either in the keeper member or the latch member or in both); that the claims are narrow and their validity is conceded. Our operation of the physical exhibits discloses a basis for the concession of validity. But it is this narrow field and nothing more which the inventor possessed when he secured his patent. As thus analyzed, limited, and explained, are the claims infringed by appellant’s latch ? Appellant’s structure has a keeper and a lateh member located similarly to the appellees’. But it contends that both its keeper and its latch member differ from those of the patent. Its keeper does not have (so it says) “an outstanding post and a head at the outer portion of the post, said head depending below the post and formed with upper and lower curved outer sides coming substantially to a point,” nor does its lateh lever have one “arm formed with an under cam side extending from the pivot and adapted to be engaged under the depending portion of the keeper.” It supplies its keeper with a lug on the inner or door side and its latch lever is supplied with an arm extending from the pivot of the lateh member, but such arm does not engage “the depending portion” of the keeper. Eather is it so constructed and so angled as to come in contact with the lug on the head of the keeper. It is this contact between the lug and the arm on the latch which causes the latch to automatically swing and lock when the door is slammed. Appellant’s keeper, though supplied with “a head formed with upper and lower curved outer sides coming substantially to a point” does not, as in the patent in suit, make use of the curved upper sides to direct the movement of the latch when the door is shut. If the arm on its lever extended a little further, it would contact with the upper curved outer side portion of the head of the keeper. The precise question then is, Does appellant- avoid infringement by placing a lug on the near side of the head of its keeper, the surface of which is curved similarly to the outer surface of its head and which is adapted to contact with the arm projecting from the handled portion of its lever? Concede the existence of claims that are narrow and restricted to structural design only, yet even in such claims there must be some range of equivalency. Perhaps the expression “range of equivalency” is not a happy one, nor does it describe the thought as accurately as it should. Instead, it would doubtless be better to say that a valid claim should rarely, if ever, have its language construed with absolute literacy. While a valid, narrow claim will be strictly construed, it by no- means follows that its terms and expressions should be limited to a hard and fast, unbending definition. Rather must the language of each claim be defined in the light of the meaning given it by the patentee, with an appreciation of the purpose and object of the element in the patented structure. To illustrate: Patentee speaks of a keeper with its base, its post, and its head. The latter member is described as having “upper and lower curved outer sides coming substantially to a point.” In our effort to ascertain whether infringement occurred, we must define the head as well as the “sides of the head.” Is the outside of appellant’s lug a part of the side of the head of the keeper? Certainly it is a part of the head, and, in the' light of the mechanics of the entire structure, the purpose it serves, we- conclude that it is a part of the side of the head. The decree is modified in so far as it sustains the validity of claims 5 and 6 of the patent in suit and enjoins the infringement of said claims 5 and 6 and to the extent that appellant is directed to account for its gains and profits due to the infringement of said claims 5 and 6. Otherwise the decree is affirmed. The costs in this court shall be divided equally between the parties. 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_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 NEWPORT AIR PARK, INC., Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant. No. 7317. United States Court of Appeals First Circuit. Dec. 4, 1969. Alan S. Rosenthal, Atty., Dept. of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Edward P. Gallogly, U. S. Atty., and Daniel Joseph, Atty., Dept. of Justice, were on brief, for appellant. Marsha E. Swiss, Washington, D. C., with whom Bruce G. Sundlun and Amram, Hahn & Sundlun, Washington, D. C., were on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. Due to the negligence of appellant United States and appellee Newport Air Park, Inc., two airplanes collided at the Warwick, Rhode Island airport. Appellee settled the ensuing injury claims, and appellant, pursuant to a local statute requiring contribution, reimbursed appellee to the extent of one-half of its outlay. This it did because the waiver contained in the Federal Tort Claims Act, FTCA, extends to claims for contribution when the government is a joint tortfeasor. United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. The government made one exception, which has resulted in the present lawsuit. One of the persons killed by the collision was a government employee. The government’s obligation to its employees is under the Federal Employees’ Compensation Act, FECA, 5 U.S.C. § 8101 et seq., a statute antedating the FTCA, and similar in content to state workmen’s compensation acts. Section 16(c) of the FECA provides that this is its sole obligation. The government discharged this liability by paying the widow $8,600. Thereafter the widow sued appellee, and recovered $50,000 by way of settlement. As required by section 32 of the FECA, the widow then repaid the $8,600 to the government. Appellee demanded contribution by the government to the extent of $8,600. Citing section 16(c), the government refused. The parties having stipulated to the above facts, the court granted judgment for the appellee, 293 F.Supp. 809, and the government appeals. Basically it is appellee’s position that the limitation contained in section 16(c) has the purpose of restricting recovery by the employee and his representatives, and is not directed at rights of unrelated third parties. The issue is not that simple. The inquiry must be, what right is appellee seeking to enforce. It is clear that if appellee’s claim to reimbursement were a strictly independent right, personal to appellee, section 16(c) would not bar such recovery. Weyerhaeuser S.S. Co. v. United States, 1963, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed. 2d 1. There a private shipowner, whose vessel collided with a government vessel, brought suit in admiralty. A cross libel was filed. Finding both to blame, the court divided the damages. The government, asserting that section 16(c) was a bar to its further liability, objected to the court’s including in the gross damages the amount that Weyer-haeuser was required to pay a government employee injured in the collision. The Court rejected this contention, saying, at p. 601, 83 S.Ct. at p. 929, “The purpose of § 7(b), added [to the FECA] in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.” Appellee cannot take all the comfort from Weyerhaeuser that it might wish. While the result there was to include in the damages to be divided between the parties what Weyerhaeuser had to pay the government employee, Weyerhaeuser had a direct right of action against the government because of the collision with its vessel. The Court held that section 16(c) of the FECA did not bar the inclusion of Weyerhaeuser’s tort liability to the government employee as part of its consequential damages. The resultant division of damages was not contribution, but was in accordance with the admiralty rule of reduced recovery when there is contributory negligence. The decision below is not supported by Weyerhaeuser, and is inconsistent therewith. The court awarded Weyerhaeuser one-half of what it was required to pay to the government employee, a sum substantially greater than the compensation payment under the FECA. See 9 Cir., 294 F.2d 179. If the Weyerhaeuser principle applied to the case at bar, appellee should recover $25,000, not $8,600. Neither the court below, nor the cases upon which it relied, nor even appellee (see n. 6, swpra) makes that contention. While on the subject of consistency, we might add that the court’s award of $8,600 is inconsistent with the basic concept of contribution, which is sharing, not payment in full. On appellee’s theory, that the government’s liability of $8,600 was occasioned by joint negligence, it would seem that the obligation should be divided between them. Instead, the government has been made to pay as much as if the negligence had been solely its own. The court’s reasoning, 293 F.Supp. at 815, seemingly that the government should pay one-half of the $50,000, but that “limitless, contribution would probably compel a complete reconsideration of the actuarial basis of compensation insurance,” while supported by a dictum in Elston v. Industrial Lift Truck Co., Inc., 1966, 420 Pa. 97, 216 A.2d 318, and in accord with the Pennsylvania rule as there summarized, seems impermissible ad hoc legislation. Either the government owes $4,300, or, conceivably, $25,000, or it owes nothing. Although appellee mistakes the effect of Weyerhaeuser, the government places too much reliance upon Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. There the combined negligence of a stevedore and a shipowner resulted in injury to an employee of the stevedore. In the Longshoremen’s and Harbor Workers’ Compensation Act. there are exclusivity and recoupment provisions comparable to the pertinent section of the FECA. The stevedore paid compensation under the Longshoremen’s Act to the injured worker, who then sued the shipowner. The latter demanded that its accountability for damages to the worker be reduced by the amount of the stevedore's payment, and that the stevedore, because of its negligence, be forbidden to recoup from the employee — in effect what is being sought here. Otherwise, it argued, the stevedore would be profiting from its own lack of care. The Court refused, holding that the statutory scheme for workmen’s compensation would be violated by such a result. The government fails to note the absence in Pope & Talbot of any statute providing for contribution. The ship owner sought to create rights merely from the fact that it was making a payment which benefited the negligent stevedore. This was a circular argument. If the shipowner had prevailed, in whole or in part, the stevedore would, in effect, have been indemnifying the shipowner for its own negligence, contrary to Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. The circumstances that the shipowner’s payment ultimately benefited the stevedore was res inter alios. The latter’s payment to its employee had nothing to do with negligence, but was contractual indemnity. An injured party’s insurance does not redound to lessen the liability of the third party who caused the injury. Had the stevedore in Pope & Talbot been an ordinary insurer that had contracted with the employee, the shipowner would have received no benefit from, or credit on account of, the compensation payment. Bangor & A. R. Co. v. Jones, 1 Cir., 1929, 36 F.2d 886; Parmiter v. United States, D.Mass., 1948, 75 F.Supp. 823; Note, Unreason in the Law of Damages: The Collateral Source Rule, 77 Harv.L. Rev. 741 (1964); Rest. Torts § 920, Comment e. Correspondingly, the fact that the employee here had agreed with the government to make a refund in certain circumstances was none of the shipowner’s concern. We must, accordingly, determine whether the right of contribution as between joint tortfeasors calls for a different result. We think not. We reach this result not by application of rubric— whether the government was a joint tortfeasor or not — because stating the question in such manner tends to assume the point, but by considering the nature of the right of contribution. Contribution does not create direct liability in tort, each towards the other, between two tortfeasors. Rather, as the word implies, it is a right based upon equitable fairness. The right to have the other tortfeasor contribute to his outlay arises in whichever tortfeasor satisfies the loss. It is inequitable that as between two parties jointly liable the ultimate loss should be fortuitously determined by the injured party’s choice of defendant. Gregory, Contribution Among Joint Tortfeasors: A Defense, 54 Harv.L.Rev. 1170 (1941); Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa. L.Rev. 131, 137 (1932); Note, Toward a Workable Rule of Contribution in the Federal Courts, 65 Colum.L.Rev. 123, 125 n. 19 (1965). As a matter of legal principle the route to contribution must be via subrogation or assignment based upon payment. In such circumstances we would suppose that there would be nothing to be subrogated to if the other party claimed to be a joint tortfeasor, was never under liability to the injured party. Nor do we readily see any unfairness,' so far as the non-liable party is concerned, for he, by hypothesis, receives no benefit from the satisfaction of the other actor’s liability. Some courts, nevertheless, have found unfairness unless the immune party contributes, without, however, explaining where the unfairness lies. See, e. g., Zarrella v. Miller, 1966, 100 R.I. 545, 217 A.2d 673. With all due respect, compelling contribution here could be said to be a windfall. But if such decisions are sound they cannot affect the case at bar. In Zarrella the party required to contribute was a husband whose negligence, along with the negligence of the party seeking contribution, had injured his wife. Under state law the husband was immune from suit by the wife. The court held, nonetheless, that he was liable to contribute. Even if Rhode Island would extend this principle to override the workmen’s compensation statute, we would not be bound. The immunity being state-created, the state, through its courts, may properly determine its extent. In the case of the FECA the immunity is federally created; its extent must be determined by the federal courts, particularly when the issue is one of government liability. Looking at the question as one of federal law, we hold that contribution cannot be had from the government when the government was under no tort liability to the injured party. Even when the person obliged to pay was only secondarily liable, and lienee entitled to full indemnity, it has been held that no right arises against the primary actor if, as the employer, he was statutorily immune from tort liability. United Air Lines, Inc. v. Wiener, 9 Cir., 1964, 335 F.2d 379; Bertone v. Turco Products, Inc., 3 Cir., 1958, 252 F.2d 726; Slattery v. Marra Bros., Inc., 2 Cir., 1951, 186 F.2d 134, 139. These are a fortiori cases, as a duty might be thought to arise between one primarily liable directly to the one only secondarily liable. But ef. Slattery v. Marra Bros., Inc., supra, where the court pointed out, in denying recovery, that the only legal relationship was that of joint tortfeasors, each to the injured party. We need not go as far as those courts to hold that contribution is barred in the present case. The judgment of the District Court is vacated. Judgment for the defendant. . Rhode Island adopted an early version of the Uniform Contribution Among Joint Tortfeasors Act. R.I.Gen.Laws 10-6-1 et seq. . While the word “tort” is in the title, the act itself waives the government’s immunity to “claims * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government * * 28 U.S.O. § 1346(b). In holding that the waiver was to be broadly construed and applied to contribution,' the Court did not address itself to the question whether a claim for contribution by a joint tortfeasor is, strictly, a tort claim. Nor did it otherwise touch on the issues in the case at bar. . The exclusivity provision with which we are presently concerned was not added until made necessary by the Federal Tort Claims Act. See S.Rep. No. 836, 81st Cong., 1st Sess., quoted by the Court in Weyerhaeuser S.S. Co. v. United States, infra, at 601, n. 5, 83 S.Ct. at 929. . “The liability of the United States or an instrumentality thereof under this sub-chapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel.” 5 U.S.C. § 8116(c). . “Adjustment after recovery from a third person. If an injury or death for which compensation is payable under this sub-chapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as a result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of suit and a reasonable attorney’s fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable >to him for the same injury. The amount refunded to the United States shall be credited to the Employees’ Compensation Fund. If compensation has not been paid to the beneficiary, he shall credit the money or property on compensation payable to him by the United States for the same injury. However, the beneficiary is entitled to retain at least one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted, plus an amount equivalent to a reasonable attorney’s fee proportionate to the refund to the United States.” 5 U.S.C. § 8132. . Actually, the complaint as filed sought the entire $50,000. However, appellee did not appeal from the court’s award of $8,-600, and informs us that this is the proper figure. . The statement that such limited liability does not interfere with the statutory scheme we cannot accept. It interferes less than would unlimited liability, but, of necessity, it interferes pro tanto. . The “specific provisions to permit an employer to recoup his compensation payments out of any recovery from a third person negligently causing such injuries * * * [are] to protect employers who are subjected to absolute liability by the Act.” 346 U.S. at 412, 74 S.Ct. at 206, supra. . Indeed, thinking of the government as wearing two hats, in its capacity as insurer it is reasonable rather than unreasonable to provide that it recovers from a negligent third party. . Because this is an assignment by operation of law, 31 U.S.C. § 203 forbidding the assignment of claims against the government does not stand in the way. Penn Tanker Co. v. United States, 5 Cir., 1969, 409 F.2d 514. . A distinction has been drawn. Compare Smith v. Southern Farm Bureau Cas. Ins. Co., 1965, 247 La. 695, 174 So.2d 122 with Yale & Towne Mfg. Co. v. J. Ray McDermott Co., 5 Cir., 1965, 347 F.2d 371; McLaughlin v. Braswell, 1968, 251 La. 1076, 208 So.2d 535; Sanderson v. Burnings Constr. Co., La.App., 1965, 172 So.2d 721. If abstract fairness is the test, in the workmen’s compensation cases the employer, at least overall, does incur contractual liability, which is to be offset by immunity in the individual case. Cf. Pope & Talbot, Inc. v. Hawn, supra. 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_fedlaw	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Pablo VINA, Plaintiff-Appellant, v. HUB ELECTRIC COMPANY, Defendant-Appellee. No. 72-1599. United States Court of Appeals, Seventh Circuit. Argued April 18, 1973. Decided June 29, 1973. Allen R. Kamp, Chicago, Ill., for plaintiff-appellant. Rody P. Biggert, Chicago, Ill., for defendant-appellee. Before SWYGERT, Chief Judge, and MURRAH and BARNES, Senior Circuit Judges. Senior Circuit Judge Alfred P. Murrah of the Tenth Circuit is sitting by designation. Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit is sitting by designation. SWYGERT, Chief Judge. Pablo Vina appeals from the decision of the district court dismissing his complaint for want of prosecution. Vina filed a pro se complaint on November 26, 1971, against Hub Electric Company alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The form complaint was apparently provided him by the district court clerk along with a form affidavit of indigency. In the form complaint, Vina asked that fees for bringing the suit be waived and that the district court appoint counsel to represent him. The district judge, on November 20, 1971, denied the requests for appointment of counsel and leave to proceed in forma pauperis. The following day, the clerk of the district court billed Vina for the cost of filing the complaint, and Vina paid the $15 filing fee. Although the complaint was filed and the filing fee paid, the clerk never issued summons. Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.” (emphasis added). There is no explanation in the record as to why the clerk did not follow the rule. Vina thereafter obtained counsel through the Legal Aid Bureau who filed an amended complaint on March 27, 1972. Rule 15(a) of the Federal Rules of Civil Procedure allows for such an amended complaint to be filed without leave of court since no responsive pleading had yet been filed by Hub Electric, the defendant. Summons then issued and the amended complaint was served on April 28, 1972. Hub Electric did not file an answer, but on May 18, 1972, the last day for filing the answer, it filed a motion to dismiss for failure to obtain leave of court prior to filing the amended complaint and a motion for extension of time to answer or otherwise plead. At a hearing on May 18 on defendant’s motion, Vina’s counsel argued that he was an attorney employed by Legal Aid and that due to the number of poor persons seeing attorneys, there was a two to three month wait before a client could be interviewed by an attorney. The district judge, sua sponte, dismissed the cause for want of prosecution and treated Hub Electric’s motions as moot. It is obvious from the judge’s remarks that he considered the “case closed” as of November 30, 1971, when he denied leave to proceed on appeal in forma pauperis even though Vina later paid the filing fee. The judge also informed Vina’s counsel that he should have specifically advised the court of the filing of his appearance and requested leave to file the amended complaint (although such leave was not required by Rule 15(a)). The question on appeal is whether the district judge abused his discretion in dismissing Vina’s case for want of prosecution. We hold that he did and accordingly reverse. The district judge and Hub Electric both rely on Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962), to support the proposition that a district court may dismiss a case for want of prosecution on its own motion. That case involved the dismissal of a six year old case which had previously been assigned two fixed trial dates which had been postponed. Plaintiff’s counsel failed to attend a pretrial conference and later gave a lame excuse for his absence. The case before us is not of the same genre. The other cases cited by Hub Electric are similarly inapropos. Hub Electric argues that Vina should have investigated and made sure that service of the summons had been obtained and that he had “familiarize [d] himself with court procedures before proceeding pro se.” Hub Electric further argues that the same standards must be applied to pro se plaintiffs as are applied to plaintiffs represented by counsel. Such a statement is highly questionable. Cf. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In its argument for requiring pro se complainants to be skilled in the law, Hub Electric ignores the thirty day time limit which Vina had to file his complaint. 42 U.S.C. § 2000e-5(e). He also ignores the fact that Vina diligently sought counsel by court appointment and later by Legal Aid. Even if the same standards were to be applied to pro se litigants as to litigants represented by counsel (which we do not hold), it would not affect this case since Vina, whether pro se or represented, cannot be held responsible for the clerk’s failure to perform his duties of issuing the summons and delivering it to the marshal. Vina had the right to file an amended complaint without leave of court pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. There was no basis in the record to support a finding that Vina had not been diligent in prosecuting his case. Nor has there been any showing of prejudice to defendant in the delay. The dismissal is reversed and the ease is remanded under Circuit Rule 23 to be assigned to another district judge. . Vina received a “right to sue” letter from the Equal Employment Opportunity Commission on November 11, 1971, notifying him that lie may institute a civil action under Title VII of the Civil Rights Act of 1964 in the district court within thirty days of receipt of the letter. . This was the first notice Hub Electric received of the suit. . Rule 21(a) of the local rules of the United States District Court for the Northern District of Illinois provides that “[c]ases which have been inactive for more than six months may be dismissed for want of prosecution.” This case does not fall under that rule since the inactivity was not six months in duration. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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). UNITED STATES of America, Plaintiff-Appellee, v. James ANDERSON, Defendant-Appellant. No. 88-2499. United States Court of Appeals, Seventh Circuit. Argued April 3, 1989. Decided Feb. 28, 1990. Frances C. Hulin, Asst. U.S. Atty., Office of the U.S. Atty., Danville, Ill., for plaintiff-appellee. James Anderson, Peoria, Ill., defendant-appellant pro se and Brian M. Collins, Ma-gee, Collins & Lodge, Chicago, Ill., for defendant-appellant. Before BAUER, Chief Judge, and CUMMINGS, and EASTERBROOK, Circuit Judges. BAUER, Chief Judge. The Government alleges that James “Big Jimmy” Anderson was a member of a conspiracy to distribute “street level” narcotics. Anderson admits to buying drugs from Jose “Kiki” Castro, the head of the conspiracy; however, he contends that all of his purchases were for personal use rather than for distribution. For reasons explained below, the case against Anderson and his codefendants was the subject of two trials. In both instances, the jury was persuaded by Government’s evidence. After the first trial, the jury found Anderson and his three codefendants guilty of conspiracy to possess cocaine and heroin with an intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. During that trial, however, the court refused to give the defendants’ instruction outlining their theory of defense — that proof of a mere buyer-seller relationship was insufficient to convict them of conspiracy to distribute narcotics. Defendants appealed, challenging this decision by the trial court and raising other claims of error. Included among these was the claim that the evidence was insufficient to sustain their conviction. This court held that it was plain error for the trial court not to give defendants’ tendered instruction. United States v. Douglas, 818 F.2d 1317, 1322 (7th Cir.1987). Without addressing the insufficiency of evidence claim, we vacated the convictions and remanded for a new trial. After a second trial in which defendants’ buyer-seller instruction was given, the jury again convicted Anderson and his codefendants of conspiracy to possess cocaine and heroin with an intent to distribute. This is Anderson’s appeal from his second conviction. He raises numerous claims on appeal, including the contention that his rights under the Double Jeopardy Clause of the fifth amendment were violated when he was retried. Anderson’s codefendants have already been before this court and have raised each of these claims in their consolidated appeal. Our decision in that case, United States v. Douglas, 874 F.2d 1145 (7th Cir.), cert. denied, - U.S. -, 110 S.Ct. 126, 107 L.Ed.2d 87 (1989) (“Douglas II ”), fully governs the merits of the present appeal. We affirm. I. The Double Jeopardy Claim Admittedly, the double jeopardy claim raised by defendants in Douglas II and now pressed by Anderson is a matter which gives us some pause. Anderson argues, as did his codefendants, that by vacating his first conviction and remanding for retrial without first addressing his insufficiency of the evidence claim, this court effectively caused him to suffer prosecution for the same offense after an acquittal. This argument turns upon a legal principle, a broad reading of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and a presumption. The legal principle upon which Anderson relies is that when an appellate court determines that the evidence at trial was insufficient to sustain the conviction, its decision is the equivalent of an acquittal. If such a determination is made, the Double Jeopardy Clause precludes the Government from retrying defendant on the same charges. Id. at 18, 98 S.Ct. at 2150. In Burks, the Supreme Court explained the moorings of this principle: [A]n appellate reversal [on the grounds that the evidence was insufficient] means that the government’s case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant, when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty. Burks, 437 U.S. at 16, 98 S.Ct. at 2150 (emphasis in original). A minority of Supreme Court Justices read Burks broadly to hold that an appellate court must review a defendant’s sufficiency of evidence claim before vacating and remanding a conviction for retrial on the basis of trial error. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 320-21, 104 S.Ct. 1805, 1819-20, 80 L.Ed.2d 311 (1984) (Brennan, J., concurring in part and concurring in the judgment, joined by Marshall, J.). Some circuits have also read Burks broadly to reach the same conclusion. Vogel v. Commonwealth of Pennsylvania, 790 F.2d 368, 376 (3rd Cir.1986); United States v. Hodges, 770 F.2d 1475, 1477 (9th Cir.1985); United States v. Sneed, 705 F.2d 745, 749 (5th Cir.1983); United States v. Morris, 612 F.2d 483, 492 (10th Cir.1979). In Douglas II, this court was persuaded that the Supreme Court’s subsequent decision in Richardson v. United States, 468 U.S. 317, 323, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242 (1984) revealed that Burks did not require, in all instances, that an appellate court rule on the insufficiency of evidence claim before a defendant could be retried. This court went on to reject the defendants’ broad reading of Burks to hold that “[wjhile we recognize the logical and legal merits of [defendants’] analysis [of Burks ], we are not convinced, in light of Richardson, that the Double Jeopardy Clause compels an appellate court to review the sufficiency of evidence offered at trial anytime a defendant raises the question. We are, nevertheless, in order to accomplish the same purpose, prepared to adopt a policy in this circuit of routinely addressing evidentiary sufficiency in criminal eases when a defendant presents the issue on appeal.... ” Douglas II, 874 F.2d at 1150. The presumption underlying Anderson’s claim is that the evidence in the first trial was insufficient to sustain his conviction, notwithstanding the plain error arising from the court’s failure to give his tendered instruction. Anderson’s codefend-ants labored under the same presumption in pressing their claim. In Douglas II, we resolved the matter by reviewing the sufficiency of the evidence presented to the jury in both the first and second trial. We held that there was sufficient evidence supporting each of the verdicts that a conspiracy to distribute cocaine and heroin existed, and that each of Anderson’s codefendants was a member of the conspiracy. To resolve the present appeal, we must determine whether the evidence at both trials was sufficient to support the jury’s conclusion that Anderson was also a member of the conspiracy. In determining whether the evidence at trial was sufficient to support the jury’s verdict, this court “is constrained to review the evidence in a light most favorable to the prosecution. Our inquiry is limited to a determination whether any rational trier of fact could have found the elements of the offense charged beyond a reasonable doubt.” United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989). A jury’s verdict must remain intact unless “the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” Id. (quoting United States v. Bruun, 809 F.2d 397, 408 (7th Cir.1987)). To establish the crime of conspiracy to violate the federal narcotics laws, the Government was required to prove that there was an agreement between two or more persons to commit acts proscribed by the federal drug laws, that the defendants were a party to the agreement, and that an overt act was committed “in furtherance of the agreement by one of the co-conspirators.” United States v. Mealy, 851 F.2d 890, 895 (7th Cir.1988) (quoting United States v. Noble, 754 F.2d 1324, 1328 (7th Cir.) cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985)). This much we have already determined with reference to Anderson’s code-fendants. At issue here is whether Anderson himself “knew of the conspiracy to [distribute drugs] and that he intended to join and associate himself with its criminal design and purpose.” United States v. Adamo, 882 F.2d 1218, 1223 (7th Cir.1989) (quoting United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988)). Since conspiracies are often conducted clandestinely, circumstantial evidence is sufficient to demonstrate Anderson’s participation in the conspiracy. Adamo, 882 F.2d at 1223 (quoting Vega, 860 F.2d at 793). But see United States v. Ortiz, 883 F.2d 515, 523-25 (7th Cir.1989) (Easterbrook, J., concurring) (questioning the propriety of the “slight connection” language employed in some of our conspiracy decisions). As we noted in Douglas II, although the evidence presented in both trials varied at certain points, many of the essential facts were proven in both instances. Douglas II, 874 F.2d at 1148. Castro, a Chicago resident, admitted that he had been in the business of dealing drugs for approximately fifteen years. Through some of his customers who were residents or former residents of Danville, Illinois, Castro sought to develop a steady market for cocaine and heroin there. These individuals included: Herman Franklin, a Chicago resident and heroin addict who had formerly lived in Danville, Illinois and [who] was a daily customer of Castro; Junior Duckworth, originally a Danville customer of Castro who later moved to Chicago and became a key player in Castro’s drug distribution operation; and the defendants [James Douglas, Martin Pruitt, Leon Mason and Anderson], who were the alleged conduits through which Castro distributed heroin and cocaine in the Danville area. Id. The evidence at both trials showed that between 1983 and July 1984, Castro was introduced to Duckworth, Mason and Anderson, and began selling them cocaine and heroin. Franklin testified that he introduced some of these individuals to Castro for the purpose of dealing drugs. Franklin himself would deliver drugs for Castro, for which he was often paid with a “fix.” Duckworth, in turn, began introducing Castro to many customers in an effort to build-up a good business in Danville. Duckworth testified that he subsidized his habit by selling drugs to others. Testimony at both trials also revealed that Anderson’s introduction to Castro came after he and Franklin pooled their money together and drove to Castro’s house to purchase a quarter or eighth of a gram of drugs for their own consumption. During the first number of such trips, Anderson waited in the car while Franklin obtained the drugs. Eventually, Franklin introduced Anderson directly to Castro as someone who was “okay.” After that point, Anderson began making his purchases directly from Castro. Castro testified that during one of these initial purchases, Anderson told him that he had “some guy” who wanted to buy cocaine. Castro then sold Anderson a half-ounce for $1000. A few weeks later, Anderson returned to Castro’s house to make another half-ounce purchase. Anderson did not have enough money to pay for this amount and promised to pay the rest later. Castro testified that over the period in question, he sold half-ounces to Anderson “quite a bit.” Castro further testified that in the Spring of 1984, Anderson introduced James Douglas to him as someone who wanted to buy cocaine. During this trip, Anderson and Douglas bought a half-ounce, but could only afford to pay $300 of the $1000 price. Douglas told Castro that if Anderson did not pay the outstanding balance, he would. About a week later, Anderson and Douglas returned to make another purchase even through they were unable to pay the balance they owed Castro. On the basis of their promise to pay later, Castro fronted three-eighths of an ounce of cocaine and three-eighths of an ounce of heroin to the two. Clarence Severado testified that during the Spring of 1984, he began buying cocaine and heroin from Douglas. Severado also testified that in late May or early June of that year, he drove Anderson and Douglas to Chicago so that the two could make a purchase of cocaine and heroin from Castro. Anderson and Douglas used some of the drugs on the ride back to Danville, and gave some to Severado as quid pro quo for driving them to Chicago. Severado testified that the quality of the drugs he was given that night was better than those which Douglas normally sold him. He stated that he knew Douglas would dilute the drugs. Testimony by Castro also revealed that on one occasion during the Spring of 1984, he came to Danville to deliver drugs and to pick up money owed to him by Douglas. Castro came across Anderson during this trip and obtained Anderson’s assistance in finding Douglas. Other testimony of a circumstantial nature shows that Anderson was at Castro’s house on numerous occasions, and at times when drugs were being prepared for distribution. The Government also produced telephone records that showed that during April, May and June of 1984, Anderson made 25 telephone calls to Castro’s residence. Finally, there is the testimony of Castro that he did not typically front drugs to mere users. He also testified that it would be unusual for a mere user to buy enough drugs to last for several weeks. In the face of this evidence, substantially the same at both trials, Anderson argues that the Government failed to present direct proof that he distributed any drugs. He argues that the evidence merely shows that he purchased drugs from the conspiracy for his own personal consumption, and that this is insufficient to establish membership in the conspiracy. United States v. Douglas, 818 F.2d at 1321. See also United States v. Mancari, 875 F.2d 103, 105 (7th Cir.1989). This contention overlooks the sum of the evidence relating to him in each of the two trials. Although he was introduced to the conspiracy on a trip to make a personal purchase, he made numerous subsequent purchases. During one of these purchases he told Castro he had “some guy” who wanted to purchase cocaine. He also introduced Douglas to the conspiracy for the purpose of buying drugs and helped Castro locate Douglas during an effort to collect money Douglas owed as a result of his subsequent drug purchases. It is clear that in each of the two trials, the jury had more than adequate evidence to conclude that Anderson was aware of the conspiracy to distribute drugs, and that he intended to, and in fact did “join and associate himself with its criminal design and purpose.” Adamo, 882 F.2d at 1223 (quoting Vega, 860 F.2d at 793). Accordingly, we find that Anderson’s sufficiency of the evidence claim with respect to both trials is unavailing. II. The Perjured Testimony Claim Anderson also contends that the trial court erred by failing to grant his motion for a new trial on the grounds that the testimony of Castro, Junior Ray Duck-worth, and Sally Young differed from that which they gave at the first trial. Anderson believes that these discrepancies are so great that the testimony of the witnesses at the second trial was perjurious. In Douglas II, this court reviewed this exact claim. The trial court had held a hearing on the issue before denying defendants’ post-trial motion for a new trial. After reviewing the record and the alleged discrepancies, we concluded that the trial court did not abuse its discretion in denying the motion. Douglas II, 874 F.2d at 1160. We found no error in the trial court’s factual finding that the alleged discrepancies were mere inconsistencies inherent in any retrial rather than perjury requiring a new trial. Id. Anderson presents no evidence to show that the same result is not equally applicable to his claim. III. The Franklin Cooperation Claim Anderson, like his codefendants, contends that the trial court erred when it denied his motion for a new trial based upon his submission of evidence that Herman Franklin was promised leniency in exchange for his cooperation with the Government. This issue arose after Franklin told counsel for two of the defendants that he had been offered a promise of leniency for his testimony. These attorneys attached affidavits to that effect to their clients’ motion for a new trial. The trial court held an evidentiary hearing on the claim. At the hearing, Franklin and the Assistant United States Attorney prosecuting the case denied any such promises. After hearing the evidence, the trial court concluded that Franklin was not offered leniency for his testimony. Although the court believed that Franklin had indeed told the lawyers about such a promise, the court concluded that Franklin’s credibility was particularly suspect. The court found that Franklin was the type of “street-wise” individual who was “likely to tell others what he thought they wanted to hear.” Douglas II at 1161. In Douglas II, we upheld the trial court’s denial of the motion for a new trial, holding that: In the instant case, the trial court found that nothing had been withheld from the defendants when it concluded that no promises were made to Franklin in return for his cooperation and testimony against the defendants. The trial court reached this conclusion after an extensive evidentiary hearing and we cannot say that such a factual finding is clearly erroneous, particularly where as here the issue of witness credibility is so crucial to resolving a direct factual conflict. As with the previous claim, Anderson does not offer any reason for us to reach a different conclusion with respect to his exact same contention. IV. The Newly Discovered Evidence Claim Anderson’s final claim is also one which we fully addressed in Douglas II. He argues that the trial court erred in failing to grant his motion for a new trial after he discovered that the Government possessed investigative reports and transcriptions of telephone calls made by Jamie Douglas to Castro and Mason. For approximately six days in June of 1984, Douglas cooperated with the agents investigating Castro’s activities, and his cooperation led to the production of these reports and transcripts. In Douglas II, we reached the merits of this claim and held that the trial court did not err in denying defendants’ motion for a new trial. We analyzed the withheld material under the two-pronged test formulated under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We concluded that on its face, the material at issue was largely inculpatory, and thus not favorable to the defendants. We went on to hold that even if defendants could have made use of the reports and transcripts to cross-examine the defendants, any use of the material would not have altered the outcome of the trial. Douglas II, 874 F.2d at 1163-64. Our review of these materials causes us to reach the same conclusion with respect to Anderson. The matters contained in the agent’s reports are particularly inculpatory for Anderson. They detail many of his trips to Chicago and his purchases of drugs from Castro. They also show that when Anderson was unable to pay all of his bills to Castro, he introduced Castro to other individuals who were interested in buying drugs. Because these materials were in-culpatory with respect to Anderson, we cannot conclude that they would have been favorable to his defense. Even if he could have used them to cross-examine any of the witnesses, it is inconceivable that they would have altered the outcome of his trial. Accordingly, the trial court did not err in denying his motion for a new trial on the basis of this newly discovered evidence. Defendant’s conviction is hereby Affirmed. . An issue raised in Richardson was whether the defendant was entitled to have his insufficiency of evidence claim reviewed where his first trial ended in a mistrial or hung jury. The Supreme Court’s language, which this court found persuasive, was that “Burks simply does not require that an appellate court rule on the sufficiency of evidence because retrial might be barred by the Double Jeopardy Clause.” Richardson, 468 U.S. at 323, 104 S.Ct. at 3085. . In essence, the Government tried members of the Castro ring in two different sets of cases. Castro, Duckworth and their wives were arrested in July, 1984 as a result of an undercover operation. See United States v. Castro, 788 F.2d 1240, 1242 (7th Cir.1986). By the time of the trials at issue in the present appeal, Castro and his wife had been convicted of conspiracy to possess with an intent to distribute and distribution of cocaine and heroin. Castro was serving a 15 year sentence. Junior Ray Duckworth was serving a 10 year sentence for the distribution of heroin. His sentence had been reduced from 15 years because of his cooperation with the Government. Jeanne Duckworth’s 3 year sentence for distributing cocaine was based on her agreement to cooperate with the Government. Each of these individuals testified at the trials involved here. Herman Franklin, an unindict-ed coconspirator, also testified at both trials. 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_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES v. BATCHELDER No. 78-776. Argued April 18, 1979 Decided June 4, 1979 Makshall, J., delivered the opinion for a unanimous Court. Andrew J. Levander argued the cause for the United States pro hac vice. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Sidney Glazer, and Frank J. Marine. Charles A. Bellows argued the cause for respondent. With him on the brief were Jason E. Bellows and Carole K. Bellows. Mr. Justice Makshall delivered the opinion of the Court. At issue in this case are two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act). Both prohibit convicted felons from receiving firearms, but each authorizes different maximum penalties. We must determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes. I Respondent, a previously convicted felon, was found guilty of receiving a firearm that had traveled in interstate commerce, in violation of 18 U. S. C. §922 (h). The District Court sentenced him under 18 U. S. C. § 924 (a) to five years’ imprisonment, the maximum term authorized for violation of §922 (h). The Court of Appeals affirmed the conviction but, by a divided vote, remanded for resentencing. 581 F. 2d 626 (CA7 1978). The majority recognized that respondent had been indicted and convicted under § 922 (h) and that § 924 (a) permits five years’ imprisonment for such violations. 581 F. 2d, at 629. However, noting that the substantive elements of § 922 (h) and 18 U. S. C. App. § 1202 (a) are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Omnibus Act to allow no more than the 2-year maximum sentence provided by § 1202 (a). 581 F. 2d, at 629. In so holding, the Court of Appeals relied on three principles of statutory construction. Because, in its view, the “arguably contradictory]” penalty provisions for similar conduct and the “inconclusive” legislative history raised doubt whether Congress had intended the two penalty provisions to coexist, the court first applied the doctrine that ambiguities in criminal legislation are to be resolved in favor of the defendant. Id., at 630. Second, the court determined that since § 1202 (a) was “Congress’ last word on the issue of penalty,” it may have implicitly repealed the punishment provisions of § 924 (a). 581 F. 2d, at 630. Acknowledging that the “first two principles cannot be applied to these facts without some difficulty,” the majority also invoked the maxim that a court should, if possible, interpret a statute to avoid constitutional questions. Id., at 630-631. Here, the court reasoned, the “prosecutor’s power to select one of two statutes that are identical except for their penalty provisions” implicated “important constitutional protections.” Id., at 631. The dissent found no basis in the Omnibus Act or its legislative history for engrafting the penalty provisions of § 1202 (a) onto §§ 922 (h) and 924 (a). 581 F. 2d, at 638-639. Relying on “the long line of cases . . . which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if [the] defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants,” the dissent further concluded that the statutory scheme was constitutional. Id., at 637. We granted certiorari, 439 U. S. 1066 (1979), and now reverse the judgment vacating respondent’s 5-year prison sentence. II This Court has previously noted the partial redundancy of §§ 922 (h) and 1202 (a), both as to the conduct they proscribe and the individuals they reach. See United States v. Bass, 404 U. S. 336, 341-343, and n. 9 (1971). However, we find nothing in the language, structure, or legislative history of the Omnibus Act to suggest that because of this overlap, a defendant convicted under § 922 (h) may be imprisoned for no more than the maximum term specified in § 1202 (a). As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other. Section 922 (h), contained in Title IY of the Omnibus Act, prohibits four categories of individuals from receiving “any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” See n. 2, supra. Persons who violate Title IV are subject to the penalties provided by §924 (a), which authorizes a maximum fine of $5,000 and imprisonment for up to five years. See n. 3, supra. Section 1202 (a), located in Title VII of the Omnibus Act, forbids five categories of individuals from “receiv[ing], possess [ing], or transport [ing] in commerce or affecting commerce . . . any firearm.” This same section authorizes a maximum fine of $10,000 and imprisonment for not more than two years. See n. 4, supra. While §§ 922 and 1202 (a) both prohibit convicted felons such as petitioner from receiving firearms, each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924 (a) applies without exception to “[w]hoever violates any provision” of Title IV, and § 922 (h) is patently such a provision. See 18 U. S. C., ch. 44; 82 Stat. 226, 234; S. Rep. No. 1097, 90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title VII’s substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924 (a) alone delimits the appropriate punishment for violations of § 922 (h). That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922 (h) derived from § 2 (f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as § 924 (a). Title IV of the Omnibus Act merely recodified with some modification this “carefully constructed package of gun control legislation,” which had been in existence for many years. Scarborough v. United States, 431 U. S. 563, 570 (1977); see United States v. Bass, supra, at 343 n. 10; 15 U. S. C. §§ 902, 905 (1964 ed.). By contrast, Title VII was a “last-minute” floor amendment, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, supra, at 344, and n. 11; see Scarborough v. United States, supra, at 569-570, and n. 9. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. 114 Cong. Rec. 14774 (1968). Senator Long, the sponsor of the amendment, replied that § 1202 would “take nothing from” but merely “add to” Title IV. 114 Cong. Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussions of the bill, Representative Machen made clear that the amendment would “complement . . . the gun-control legislation contained in title IV.” Id., at 16286. Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV. See Scarborough v. United States, supra, at 573. These discussions, together with the language and structure of the Omnibus Act, evince Congress’ clear understanding that the two Titles would be applied independently. In construing § 1202 (a) to override the penalties authorized by § 924 (a), the Court of Appeals relied, we believe erroneously, on three principles of statutory interpretation. First, the court invoked the well-established doctrine that ambiguities in criminal statutes must be resolved in favor of lenity. E. g., Rewis v. United States, 401 U. S. 808, 812 (1971); United States v. Bass, 404 U. S., at 347; United States v. Culbert, 435 U. S. 371, 379 (1978); United States v. Naftalin, 441 U. S. 768, 778-779 (1979); Dunn v. United States, ante, at 112-113. Although this principle of construction applies to sentencing as well as substantive provisions, see Simpson v. United States, 435 U. S. 6, 14-15 (1978), in the instant case there is no ambiguity to resolve. Respondent unquestionably violated § 922 (h), and § 924 (a) unquestionably permits five years’ imprisonment for such a violation. That § 1202 (a) provides different penalties for essentially the same conduct is no justification for taking liberties with unequivocal statutory language. See Barrett v. United States, 423 U. S. 212, 217 (1976). By its express terms, § 1202 (a) limits its penalty scheme exclusively to convictions obtained under that provision. Where, as here, “Congress has conveyed its purpose clearly, ... we decline to manufacture ambiguity where none exists.” United States v. Culbert, supra, at 379. Nor can § 1202 (a) be interpreted as implicitly repealing § 924 (a) whenever a defendant’s conduct might violate both Titles. For it is “not enough to show that the two statutes produce differing results when applied to the same factual situation.” Radzanower v. Touche Ross & Co., 426 U. S. 148, 155 (1976). Rather, the legislative intent to repeal must be manifest in the “ 'positive repugnancy between the provisions.’ ” United States v. Borden Co., 308 U. S. 188, 199 (1939). In this case, however, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes. Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here. This “ 'cardinal principle’ of statutory construction ... is appropriate only when [an alternative interpretation] is 'fairly possible’ ” from the language of the statute. Swain v. Pressley, 430 U. S. 372, 378 n. 11 (1977); see Crowell v. Benson, 285 U. S. 22, 62 (1932); United States v. Sullivan, 332 U. S. 689, 693 (1948); Shapiro v. United States, 335 U. S. 1, 31 (1948). We simply are unable to discern any basis in the Omnibus Act for reading the term “five” in § 924 (a) to mean “two.” Ill In resolving the statutory question, the majority below expressed “serious doubts about the constitutionality of two statutes that provide different penalties for identical conduct.” 581 F. 2d, at 633-634 (footnote omitted). Specifically, the court suggested that the statutes might (1) be void for vagueness, (2) implicate “due process and equal protection interest^] in avoiding excessive prosecutorial discretion and in obtaining equal justice,” and (3) constitute an impermissible delegation of congressional authority. Id., at 631-633. We find no constitutional infirmities. A It is a fundamental tenet of due process that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). A criminal statute is therefore invalid if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” United States v. Harriss, 347 U. S. 612, 617 (1954). See Connolly v. General Construction Co., 269 U. S. 385, 391-393 (1926); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972); Dunn v. United States, ante, at 112-113. So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. See United States v. Evans, 333 U. S. 483 (1948); United States v. Brown, 333 U. S. 18 (1948); cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966). The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties -available upon conviction. See supra, at 119. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied. B This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. See United States v. Beacon Brass Co., 344 U. S. 43, 45-46 (1952); Rosenberg v. United States, 346 U. S. 273, 294 (1953) (Clark, J., concurring, joined by five Members of the Court); Oyler v. Boles, 368 U. S. 448, 456 (1962); SEC v. National Securities, Inc., 393 U. S. 453, 468 (1969); United States v. Naftalin, 441 U. S., at 778. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. See Confiscation Cases, 7 Wall. 454 (1869); United States v. Nixon, 418 U. S. 683, 693 (1974); Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978). The Court of Appeals acknowledged this “settled rule” allowing prosecutorial choice. 581 F. 2d, at 632. Nevertheless, relying on the dissenting opinion in Berra v. United States, 351 U. S. 131 (1956), the court distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. 581 F. 2d, at 632-633. In the court’s view, when two statutes prohibit “exactly the same conduct,” the prosecutor’s “selection of which of two penalties to apply” would be “unfettered.” Id., at 633, and n. 11. Because such prosecutorial discretion could produce “unequal justice,” the court expressed doubt that this form of legislative redundancy was constitutional. Id., at 631. We find this analysis factually and legally unsound. Contrary to the Court of Appeals’ assertions, a prosecutor’s discretion to choose between §§ 922 (h) and 1202 (a) is not “unfettered/’ Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints. And a decision to proceed under § 922 (h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than § 1202 (a) would permit and precludes him from imposing the greater fine authorized by § 1202 (a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Cf. Rosenberg v. United States, supra, at 294 (Clark, J., concurring); Oyler v. Boles, supra, at 456. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. See U. S. Const., Art. II, §§ 2, 3; 28 U. S. C. §§ 515, 516; United States v. Nixon, supra, at 694. C Approaching the problem of prosecutorial discretion from a slightly different perspective, the Court of Appeals postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties. See United States v. Hudson, 7 Cranch 32, 34 (1812); United States v. Grimaud, 220 U. S. 506, 516-517, 519 (1911); United States v. Evans, 333 U. S., at 486. We do not agree. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty. See United States v. Evans, supra, at 486, 492, 495. Accordingly, the judgment of the Court of Appeals is Reversed. 82 Stat. 197. In pertinent part, 18 U. S. C. § 922 (h) provides: “It shall be unlawful for any person— “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug ... or narcotic drug . . . ; or “(4) who has been adjudicated as a mental defective or who has been committed to any mental institution; “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Title 18 U. S. C. § 924 (a) provides in relevant part: “Whoever violates any provision of this chapter . .. shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.” Section 1202 (a) states: “Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or “(2) has been discharged from the Armed Forces under dishonorable conditions, or “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or “(4) having been a citizen of the United States has renounced his citizenship, or “(5) being an alien is illegally or unlawfully in the United States, “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” 18 U. S. C. App. § 1202 (a). Even in the case of convicted felons, however, the two statutes are not coextensive. For example, Title VII defines a felony as “any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less.” 18 U. S. C. App. § 1202 (c)(2). Under Title IV, “a crime punishable by imprisonment for a term exceeding one year,” 18 U. S. C. § 922 (h) (1), excludes “(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices ... , or “(B) any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U. S. C. § 921 (a) (20). In addition, the Commerce Clause elements of §§ 922 (h) and 1202 (a) may vary slightly. See Barrett v. United States, 423 U. S. 212 (1976); Scarborough v. United States, 431 U. S. 563, 571-572 (1977). Four months after enacting the Omnibus Act, the same Congress amended and re-enacted Titles IV and VII as part of the Gun Control Act of 1968. 82 Stat. 1213. This latter Act also treats the provisions of Titles IV and VII as independent and self-contained. Title I of the Gun Control Act amended Title IV, compare 82 Stat. 225 with 82 Stat. 1214, and Title III of the Gun Control Act amended Title VII. Compare 82 Stat. 236 with 82 Stat. 1236. The accompanying legislative Reports nowhere indicate that the sentencing scheme of § 1202 (a) was to govern convictions under § 922. See H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 31, 34 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 21, 37 (1968). The anomalies created by the Court of Appeals’ decision further suggest that Congress must have intended only the penalties specified in § 924 (a) to apply to violations of § 922 (h). For example, a person who received a firearm while under indictment for murder would be subject to five years’ imprisonment, since only § 922 (h) includes those under indictment for a felony. 18 U. S. C. § 922 (h) (1). If he received the firearm after his conviction, however, the term of imprisonment could not exceed two years. Similarly, because § 922 (h) alone proscribes receipt of ammunition, a felon who obtained a single bullet could receive a 5-year sentence, while receipt of a firearm would be punishable by no more than two years’ imprisonment under § 1202 (a). In addition, the Court of Appeals’ analysis leaves uncertain the result that would obtain if a sentencing judge wished to impose a maximum prison sentence and a maximum fine for conduct violative of both Titles. The’doctrine of lenity would suggest that the $5,000 maximum of § 924 (a) and the 2-year maximum of § 1202 (a) would apply. However, if the doctrine of implied repeal controls, arguably the $10,000 fine authorized by § 1202 (a) could be imposed for a violation of § 922 (h). See infra, at 122. Berra involved two tax evasion statutes, which the Court interpreted as proscribing identical conduct. The defendant, who was charged and convicted under the felony provision, argued that the jury should have been instructed on the misdemeanor offense as well. The Court rejected this contention and refused to consider whether the defendant’s sentence was invalid because in excess of the maximum authorized by the misdemeanor statute. The dissent urged that permitting the prosecutor to control whether a particular act would be punished as a misdemeanor or a felony raised “serious constitutional questions.” 351 U. S., at 139-140. The Equal Protection Clause prohibits selective enforcement “based upon an unjustifiable standard such as race, religion, or other arbitrary-classification.” Oyler v. Boles, 368 U. S. 448, 456 (1962). Respondent does not allege that his prosecution was motivated by improper considerations. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_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. BIG LAKE OIL CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 6449. Circuit Court of Appeals, Third Circuit. Feb. 18, 1938. Rehearing Denied April 19, 1938. Edgar J. Goodrich, of Washington, D. C., and S. Leo Ruslander, of Pittsburgh, Pa., for petitioner. James W. Morris, Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for respondent. Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges. THOMPSON, Circuit Judge. This is a petition for review of a decision of the Board of Tax Appeals determining a deficiency in the petitioner’s income tax for 1927. The issue is whether the amount of $598,571.01, the agreed fair market value of certain shares of common stock received by the petitioner, should be included in the petitioner’s taxable income for 1927. The determination of this issue is dependent upon whether the shares were received by the petitioner in 1927 or in some prior year. The shares of stock were acquired by the petitioner under the following circumstances: The petitioner and others, hereinafter referred to as the producers, were engaged in producing and selling petroleum oil from wells in Reagan county, Texas. In prder to procure access to pipe lines by which to transport the oil to market, the petitioner and the producers, in a contract dated October 22, 1924, agreed to sell to Marland Oil Company, hereinafter referred to as Marland, or its nominee, all the oil they should produce up to an agreed maximum amount. Marland agreed to organize Reagan County Purchasing Company, Inc., hereinafter referred to as Reagan, and to provide the necessary working capital for Reagan by the purchase of its preferred stock at par. This stock was to be retired out of the profits of the company. Marland was to receive 51 per cent, of the common stock. The petitioner and the producers were to share the remaining 49 per cent, temporary certificates for which were to be issued in the name of the petitioner for one-half and in the names of the producers jointly for the other half. The final several ownership of the 49 per cent, was to be determined in accordance with the terms of a separate agreement between the petitioner and the producers. This agreement was evidenced by a letter dated October 19, 1924, in which it was agreed that the division be made among the petitioner and the producers as soon after December 1, 1926, as convenient, based proportionately upon the amount of oil which each should deliver towards the daily quota of 20,000 barrels during a test period from December, 1925, to December, 1926. In a contract dated November 24, 1924, the petitioner and the producers agreed to sell to Reagan, and Reagan agreed to purchase, a maximum of 20,000 barrels of oil daily. Reagan likewise agreed to provide the necessary pipe lines. On January 2, 1926, an escrow agreement was executed which provided that the temporary certificates issued in the names of the petitioner and the producers be deposited with the escrow agent, and that the shares of stock represented by the certificates could not be sold, assigned, or transferred (except to Marland, the petitioner, or to the producers) so long as any of the preferred stock had not been retired. The certificates were deposited with the escrow agent on March 12, 1926. During the test period the petitioner and •the producers each delivered more than 10,--000 barrels of oil daily; thus entitling the petitioner to one-half of the 49 per cent, of common stock and the producers to one-half. The- last remaining preferred stock was retired and the escrow was terminated in January, 1927. The petitioner received a certificate for 2,450 shares, free of restrictions in March, 1927; the shares having an agreed fair market value of $598,-571.01. The petitioner did not report any income from the receipt of these shares for 1927 or for any prior year. The Commissioner determined that the petitioner received the shares in 1927. Section 213 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 23, requires that all items of gross income shall be included for the taxable year in which received by the taxpayer. Stoner v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 75, certiorari denied Helvering v. Stoner, 296 U.S. 650, 56 S.Ct. 309, 80 L.Ed. 462; Taylor v. Commissioner of Internal Revenue, 7 Cir., 89 F.2d 465; United States v. Safety Car Heating Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. Until 1927, when the escrow was terminated, the petitioner not only lacked either actual possession or control, but the number of shares to which it would ultimately be entitled was dependent upon future tests and the shares themselves were burdened with restrictions until and if Reagan earned sufficient profits to retire the preferred shares. It is our opinion that the petitioner realized no income pending determination of the true and ultimate ownership and that this did not occur until 1927. The decision of the Board of Tax Appeals is 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_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. AR-EX PRODUCTS CO., Plaintiff, Appellant, v. CAPITAL VITAMIN & COSMETIC CORP., Defendant, Appellee. No. 6554. United States Court of Appeals First Circuit. Heard Oct. 5, 1965. Decided Oct. 29, 1965. Frank L. Kozol, Boston, Mass., with whom Lee H. Kozol, Thomas J. Ahern, Jr., and Friedman, Atherton, Sisson & Kozol, Boston, Mass., were on brief, for appellant. Herbert D. Lewis, Boston, Mass., for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE, Circuit Judge, and WYZAN-SKI, District Judge. ALDRICH, Chief Judge. This case presents the narrow question whether plaintiff-appellant, a manufacturer who under local law could otherwise enforce fair trade agreements against a nonsigner, General Electric Co. v. Kimball Jewelers, Inc., 1956, 333 Mass. 665, 132 N.E.2d 652, is precluded from so doing because as a matter of regular procedure it replied to individuals inquiring as to the availability of its goods not only with information about local retail outlets, but with offers to sell directly to them in retail quantities. Although plaintiff’s power to bind signers and nonsigners to the terms of a fair trade agreement is created by local law, it can do so only by virtue of an exception to the fundamental federal policy that “[e]very contract * * * in restraint of trade or commerce * * * is declared to be illegal * * 15 U.S.C. § 1. The Miller-Tydings amendment to the Sherman Anti-Trust Act, 15 U.S.C. § 1, and the McGuire amendment to the Federal Trade Commission Act, 15 U.S.C. § 45, permit resale price maintenance agreements provided, inter alia, they are not “ * * * between retailers, or between persons, firms, or corporations in competition with each other.” 15 U.S.C. §§ 1, 45(a) (5). The district court held that since plaintiff was “in competition with the retail druggists with whom it has made its resale price maintenance contracts * * it was precluded by this proviso from claiming the fair trade exemption to the antitrust laws. Plaintiff appeals. Plaintiff contends that it was not in competition with retail druggists because, as the court in substance found, its offers to sell in retail quantities were never accepted. We hold, however, that for purposes of the Miller-Tydings and McGuire Acts, hereinafter the act, a manufacturer is “in competition” with retailers if he holds himself out as selling his products to consumers in the same market in retail quantities, regardless of the success vel non of his retail operations. Whether or not plaintiff possesses all of the characteristics of a “retailer,” as used in the act this term and the phrase “in competition with each other” are separate concepts, either of which is sufficient to negative the act’s protection against an otherwise illegal contract. Esso Standard Oil Co. v. Secatore’s, Inc., 1 Cir., 1957, 246 F.2d 17, cert. den. 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46; Johnson & Johnson v. Avenue Merchandise Corp., fn. 2, supra. The strength of the national policy favoring free competition requires that the act be construed against parties seeking the benefit of its exceptions. United States v. McKesson & Robbins, Inc., 1956, 351 U.S. 305, 316, 76 S.Ct. 937, 100 L.Ed. 1209. Certainly in one meaning, “in competition” refers to the seeking of the same customers without regard to the success of the endeavor. It has been suggested that the very circumstance that a manufacturer’s attempts to sell to retail customers are ineffectual might encourage it to insulate itself “from the inroads of more efficient operators by setting its ‘fair trade’ prices higher than otherwise.” Protection of this sort seems clearly outside the purpose of the fair trade laws. However that may be, the principle advocated by the plaintiff would give a manufacturer who seeks to sell in retail quantities an undue advantage. Even if it might be possible it would scarcely be practical for a small local retailer to ascertain currently the success of a manufacturer’s mail order solicitation. We do not believe that plaintiff, the party seeking relief, and sitting, so to speak, with a closed hand, should place the burden upon the defendant to discover whether it is a good one. If plaintiff’s apparent competition is so ineffectual as not to be real it can readily give it up. To seek to enjoin the defendant while it continues its own endeavors falls little short of heads-I-win-tails-you-lose. Affirmed. . Strictly speaking we are concerned only with the McGuire Act, since the former is inapplicable to the nonsigner provisions of state laws. Schwegmann Bros. v. Calvert Distillers Corp., 1951, 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035. However, in the parts relevant to this decision, the statutes are identical. . See discussion in Johnson & Johnson v. Avenue Merchandise Corp., S.D.N.Y., 1961, 193 F.Supp. 282. . This quotation is taken from an argument referred to in United States v. McKesson & Robbins, Inc., supra, at 315 n. 20, 76 S.Ct. 937, but which the court did not pass upon. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_initiate	C	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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILLOW MAINTENANCE CORP., Respondent. No. 422, Docket 28658. United States Court of Appeals Second Circuit. Argued May 13, 1964. Decided May 13, 1964. Seymour Strongin, Atty., National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lee M. Modjeska, Atty., Washington, D. C., on the brief), for petitioner. Stephen A. Cohen, New York City (Henry G. Friedlander and W. Harvey Mayer, New York City, of counsel), for respondent. Before KAUFMAN, HAYS and MARSHALL, Circuit Judges. PER CURIAM. The Board here seeks enforcement of an order which, inter alia, directs respondent Willow Maintenance, a taxicab company, to reinstate and make whole one Jose Torres, a driver discharged because he distributed union literature in the company’s waiting room. Earlier this term, in N. L. R. B. v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 1963), we held that enforcement of a company rule which prohibited the distribution of union literature in non-work areas on non-work time was an unfair labor practice, in the absence of special circumstances necessitating such a rule for the maintenance of production or discipline. The major question raised in this proceeding was whether the waiting room was, in fact, a non-work area. Both the Labor Board and its Trial Examiner determined that it was, and we agree. Although 80 of the room’s 300 square feet are occupied by the company’s dispatcher and cashier, testimony before the Trial Examiner revealed that the remainder of the room is lined with lockers, contains an L-shaped bench, and is open to drivers as a lounging place when they are waiting to be dispatched. The drivers are permitted to read newspapers, watch television and converse freely. In the words of the company’s dispatcher, “they discuss everything. Sometimes they discuss about horses, they will discuss about fights. Among the cab drivers, we are the best philosophers, we discuss all conversations.” And, most significantly, at the very moment that Torres was distributing his union cards, “the television set was on, * * * some men were reading, * * * others were conversing [and] the room was far from crowded.” Under these circumstances, we find that the Board was entirely correct in concluding that the waiting-room was a “non-work” area. In Judge Clark’s words, “[w]e have long passed the point where the bundle of property rights can be used arbitrarily or capriciously to restrict a worker’s freedom of association or expression.” NLRB v. United Aircraft Corp., 324 F.2d at 131. Especially in light of the proviso to the Board’s order, which emphasizes that nothing contained therein “shall require Respondents to permit activity in the waiting room which disrupts the operation of the business,” we find that the company’s legitimate interests have been well protected, and we accordingly enforce those portions of the order which pertain to the distribution of union literature and Torres’ discharge. In addition, however, the Board found that the company had violated § 8 (a) (1) in briefly interrogating Torres about union activity at a time prior to the incident in the waiting-room, and accordingly ordered the company to cease and desist from any such interrogation in the future. Since we do not believe that the questioning at issue was either explicitly or implicitly coercive, we hold that this violation was not established, and we hence modify the order by deleting that portion which refers to the interRogation. See NLRB v. Montgomery Ward & Co., 192 F.2d 160 (2d Cir. 1951). The order is modified accordingly, and, as so modified, is enforced in open court. 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	C	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). Michael J. CALLAHAN, Plaintiff-Appellant, v. FLUOR OCEAN SERVICES, INC. and Liberty Mutual Insurance Company, Defendants-Appellees. No. 73-1517 Summary Calendar. United States Court of Appeals, Fifth Circuit. Aug. 17, 1973. William M. Bass, Houma, La., Donald V. Organ, New Orleans, La., for plaintiff-appellant. Frank C. Allen, Jr., New Orleans, La., for defendants-appellees. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: The plaintiff in this case brought suit under the General Maritime Law and the Jones Act to recover for injuries he sustained while he was being lifted onto a fixed drilling platform in the Gulf of Mexico. The district court granted summary judgment for the defendants on both claims. We affirm. Shell Oil Company had contracted with the defendant, Fluor Ocean Services, Inc., to have the defendant'install production facilities on three new offshore platforms in the Gulf. Shell then contracted with the Cheramie Boat Company to have Fluor’s workers on the platform at which the injury in this case occurred transported there aboard the Botruc II, a large crewboat owned by Cheramie. Callahan, a painter’s helper employed by Fluor, was injured the first day of work. Callahan and a co-worker got into a large cargo basket to be lifted by a crane to the platform. While the basket was being raised some mechanical or operational misfunction of the crane caused the basket to fall rapidly toward the deck of the Botruc II. The crane operator jammed on the brakes bringing the falling basket to a sudden halt. Callahan fell to the deck of the Botruc II and sustained serious injuries. The district court denied Callahan’s maritime law claim on the ground that Fluor was not an owner of the Botruc II for the occasion in question. He was, therefore, not liable for the unseaworthiness of the vessel. It then held that the determination that Fluor was not an owner for the occasion of the vessel was conclusive not only of Callahan’s unseaworthiness claim but of his Jones Act claim as well. We agree that Fluor cannot be held to have been the owner for the occasion of the Botruc II, and that that fact defeats Callahan’s common law claim. However, we cannot agree that a failure to establish that Fluor enjoyed sufficient control of the vessel to be held an owner for the occasion necessarily defeats the Jones Act claim. Control of the operation during which an injury is sustained may sometimes suffice to establish Jones Act liability. See Barrios v. Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157. However, we find another ground for affirming the grant of summary judgment on the Jones Act claim. Fluor had argued in support of its motion for summary judgment that there was not sufficient evidence that Callahan was a seaman entitled to sue under the Jones Act to send the case to the jury. The district court did not reach this contention, because of its holding that Fluor did not have sufficient control of the vessel to be liable under the Jones Act. We reach the contention; and sustain it. The rule in this Circuit for determining when a jury may decide whether a plaintiff is a seaman is well-settled. That rule was announced in Offshore Co. v. Robison, 5 Cir. 1959, 266 F.2d 769, 779: [T]his Court’s position may be stated, affirmatively: there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that'the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. We have repeatedly held that fixed drilling platforms like the one on which the plaintiff worked are not vessels. Texas Co. v. Savoie, 5 Cir. 1957, 240 F.2d 674, cert. denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51; Nolan v. Coating Specialists, Inc., 5 Cir. 1970, 422 F.2d 377. Clearly Callahan was not permanently assigned to the Botruc II and did not perform a substantial part of his work on that vessel; nor did his employment as a painter’s helper on the platform contribute either to the function of the Botruc II or to the welfare of the vessel during its movement. Callahan was only a passenger on the crew-boat twice daily. There was thus no evidence on which a jury could have found he was a seaman, and summary judgment was proper. 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_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). UNITED STATES of America, Appellee, v. Herman Louis WILLIAMS, Appellant. No. 73-1471. United States Court of Appeals, Fourth Circuit. Argued Aug. 4, 1973. Decided Oct. 8, 1973. Richard J. Stahl, Court-appointed counsel, Richmond, Va. (Horwitz, Baer & Neblett, Inc., Richmond, Va., on brief), for appellant. Raymond A. Carpenter, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit Judges. FIELD, Circuit Judge: This case involves the construction of 18 U.S.C. § 922(e), a section of the Gun Control Act of 1968, regulating the shipment in interstate or foreign commerce of firearms and ammunition by common or contract carrier. Section 922(e) makes it unlawful “for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter.” (Emphasis added). In November, 1971, Herman Louis Williams boarded an Altair Air Lines flight from Baltimore, Maryland, to Richmond, Virginia. Before boarding the plane, Williams handed his luggage to the pilot who placed it in the nose cone of the plane where it remained throughout the flight. Williams did not inform the pilot orally or in writing that a firearm was in the luggage. Williams was indicted for violation of 18 U.S.C. § 922(e) and was found guilty by the district judge sitting without a jury. Before the district court and this court Williams has maintained that he qualifies under the exception clause of Section 922(e) which we have emphasized above. It is undisputed that Williams was a passenger who legally owned or possessed the firearm in question which was transported in interstate commerce aboard a common carrier. At issue is whether Williams’ transfer of the luggage to the plane’s pilot without informing him of its contents satisfied the requirement that the passenger “deliver said firearm * * * into the custody of the pilot.” Williams argues that a relinquishment of control is all that the statute requires of a passenger and in support of his argument notes the absence in the exception clause of an express notice requirement such as that imposed on certain shippers. While it is true that criminal statutes are to be strictly construed and that ambiguities are to be resolved in favor of the defendant, statutes are not to be construed in a manner which would defeat their clear purpose. United States v. Cook, 384 U.S. 257, 262, 86 S.Ct. 1412, 16 L.Ed.2d 516 (1966); United States v. Brown, 333 U.S. 18, 25 and 26, 68 S.Ct. 376, 92 L.Ed. 442 (1948); Stock v. Department of the Air Force, 186 F.2d 968, 972 (4 Cir. 1950). The language of Section 922(e) is manifestly clear in its requirement that firearms and ammunition be brought to the carrier’s attention, either by written notice in the case of a shipper or by a delivery into the carrier’s custody of the firearm itself in the case of a passenger. Carrying Williams’ argument to the absurd extreme, a dealer, barred from shipping a single firearm in interstate commerce aboard a common carrier without giving the carrier written notice, could ship any quantity of firearms and ammunition in sealed containers and evade the.requirement of written notice by the simple expedient of flying as a passenger and carrying the containers as luggage. Such surreptitious traffic in firearms and ammunition was the precise menace at which the Gun Control Act of 1968 was directed. As the court in United States v. Burton, 351 F.Supp. 1372 (W.D.Mo.1972), noted, the entire statutory scheme is aimed at restricting the unchecked movement of firearms and ammunition which undermines legitimate efforts to impose reasonable restrictions upon their possession and use. The legislative history accompanying Section 922(e) [reported as 922(d)] reveals that the notice requirements were designed “to make more effective the succeeding subsection [enacted as 922(f); reported as 922(e)] which prohibits a carrier from transporting or delivering a firearm in violation of the chapter.” 3 U.S.Code Cong. & Ad.News, p. 4420 (90th Cong., 2d Sess.1968). Plainly, if a carrier is not put on notice of a firearm’s presence it cannot discharge its legal obligation to insure that the transportation is lawful. The absence of an explicit requirement of notice in the passenger exception was obviously predicated on the common sense belief that delivery of firearms and ammunition into a common carrier’s custody would be done in a manner which would make the carrier aware of that fact. If the Congressional purpose in enacting the Gun Control Act of 1968 is to be realized, “custody” must be construed to mean a transfer of control in a manner which gives the carrier actual notice of the presence of a firearm. Any other construction would be sophistic and effectively defeat that purpose. Accordingly, the judgment of the district court 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	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. AMERICAN LEGION POST NO. 90 OF VILLAGE OF MAMARONECK et al. v. FIRST NAT. BANK & TRUST CO. OF MAMARONECK et al. No. 396. Circuit Court of Appeals, Second Circuit. July 22, 1940. Burton C. Meighan, Jr., of New York City (Meighan & Necarsulmer and Louis A. Marchisio, all of New York City, and James S. May, of White Plains, N. Y., on, the brief), for plaintiffs-appellants. Monroe J. Cahn, of White Plains, N. Y. (Lynch & Cahn and Harold M. Miller, all of White Plains, N. Y., on the brief), for defendants-appellees. Before SWAN, CLARK, and PATTERSON, Circuit Judges. CLARK, Circuit Judge. In 1921, 83 citizens of the town of Mamaroneck subscribed a total sum of $15,641.75 towards the purchase of premises to be used for the erection of a Community House as a memorial to the veterans of the World War. Title to the land purchased was taken in the name of one McArdle, one of the subscribers to the fund. After this first flush civic spirit seems to have lagged somewhat, and funds were not forthcoming for the building of the house itself. In due time, therefore, decision was made by the subscribers to sell the premises, and by November, 1928, a purchaser was found for the land for the sale price of $160,000. Meanwhile McArdle had died, and his wife, who took title to the property, deeded it to The First National Bank and Trust Company of Mamaroneck (the “old bank”) according to the arrangements which had been made on the advice of a title company for the proper effectuation of the contract of sale. The old bank accepted the conveyance, entered into the contract of purchase, eventually conveyed the property to the purchaser, and received back part of the purchase money in cash and a purchase money mortgage in the sum of $130,000 payable by March 1, 1930. Payments were made in due course, so that, by May IS, 1930, the old bank had received a final payment of the entire purchase sum, together with interest accruements. It made certain disbursements of expenses and payments on the principal to the subscribers. In January, 1932, the “new bank,” First National Bank of Mamaroneck, was organized to assume all the liabilities and obligations of the old bank; but it failed in January, 1933, at which time the Comptroller of the Currency found it to be insolvent and appointed a receiver for it. The old bank was likewise declared insolvent and a receiver appointed in February, 1934. The payments made against the account by the two banks totaled $102,318.81, leaving a balance on hand of $60,964.39, the amount here involved at the time of the failure of the new bank. The matter was before this court and these facts are recited in the case of Meeker v. Durey, 2 Cir., 92 F.2d 607, involving the issue of income tax liability on these funds. The present questions are whether the fund was held by the banks as a general deposit or as a trust, and if the latter, whether or ■ not certain securities set aside by the banks for their trust funds pursuant to statute may now be availed of for the payment of the balance due. The district court found only a general deposit and allowed plaintiffs merely their general claim. The plaintiffs are a portion of the original subscribers .to the fund who are suing on behalf of themselves and all others similarly situated. The court below found that they were proper representatives of all the subscribers, and that this action was properly brought as a class suit under former Equity Rule 38, 28 U.S.C.A. following section 723, and Federal Rule 23, 28 U.S.C.A. following section 723c; that portion of the judgment below is not the subject of appeal. Nor is there appeal from so much of the judgment as allots to the subscribers a refund of income taxes in the amount of $20,188.99 secured by the receiver as a result of Meeker v. Durey, supra. In that case, which was a suit by the receiver of the new bank against the estate of the Collector of Internal Revenue, the plaintiff claimed a refund of taxes assessed against him as trustee or fiduciary in respect of this same fund. We held that the bank was not taxable as a fiduciary, since under New York law the deed to McArdle and the later deed to the bank gave rise only to a so-called passive trust; and we made an alternative ruling that even if the bank was a fiduciary, the income, consisting of gains on the sale, was not accumulated for the benefit, of unborn or uncertain persons. Hence the income, if any, was taxable to the subscribers, and' not to the bank. The controlling statutory provisions in issue here are contained in a lengthy .'section of the Federal Reserve Act, § 11 (k), 12 U.S.C.A. § 248 (k), authorizing and empowering the Board of Governors of the Federal Reserve System to grant by special permit to a national bank applying therefor the right to act as trustee and in various other named representative capacities, including those of executor, administrator, or receiver, “or in any other fiduciary capacity” in which competing state banks may act. It is provided that national banks exercising the powers enumerated in this subsection “shall segregate all assets held in any fiduciary capacity from the general assets of the bank and shall keep a separate set of books and records showing in proper detail all transactions engaged in under authority of this subsection.” Then it is stated that “No national bank shall receive in its' trust department deposits of current funds subject to check or the deposit of checks, drafts, bills of exchange, or other items for collection or exchange purposes.” Next follows the provision specifically in issue: “Funds deposited or held in trust by the bank awaiting investment shall be carried in a separate account and ■ shall not be used by the bank in the conduct of its business unless it shall first set aside in the trust department United States bonds or other securities approved by the Board of Governors of the Federal Reserve System.” And the statute continues that in event of the bank’s failure the owners of the funds held in trust for investment shall have a lien on these securities so set apart, in addition to their claim against the estate of the bank. In this case each of the banks here involved treated the funds received from the sale of the Community House property as part of its trust funds, carried the accounts thereof in its trust department, and set aside securities for the protection of this fund and its other trust funds. The method which was followed was not the allocating of separate securities of the bank to each trust fund, but merely the earmarking for the trust department of securities generally to cover the shifting balance due the trust department for all its trust funds. Since the assets of the bank set aside for the trust department are adequate to cover all the trust accounts, including the account now under discussion, it is obvious, and indeed not disputed, that the bank intended to protect this fund as a trust fund. The objections made are really three: that the fund was only a general deposit without priority, and the course of dealing indicates an intention that the bank should use the funds for its general purposes; that there was no agreement with the subscribers to hold the funds “for investment,” but only for distribution, thus taking the matter outside the quoted statute; and that, since no securities were set aside separately for .this particular fund, there were no securities available to which priority might attach. 1. We are clear that the hanks held the funds in a fiduciary capacity, and that the arrangement created something more than a general deposit. It is true that the court below made a specific finding of fact, which it repeated as a conclusion of law, that no agreement was at any time requested of, or made by, the old bank or the new bank that the said money should be held in trust or deposited in the trust department of the bank, or be invested on behalf of the contributors, or in any manner secured, with a further finding that the batiks carried the account in the trust department merely as a matter of convenience to themselves. There was testimony by the president of the old bank indicating that the funds had been received in trust, but this the court seems to have rejected. We think effect may he given to the finding to the extent of its holding that no express agreement as to the manner of carrying the fund was made; but a conclusion of law that this account was only a general deposit does not necessarily follow therefrom and is in truth at variance with other facts either admitted or clear of record. As early as 1921 the McArdles executed a formal document expressly declaring that title to the property was held by Mr. Mc-Ardle “only as an intermediary” until it should be determined by the persons in charge of the Community House movement that it should be deeded to some one else, and they thereby agreed to deed the same when and how properly directed. From time to time thereafter McArdle was referred to as trustee of the Community House property. The bank, when it took title with full knowledge of this arrangement, necessarily did so as a similar “intermediary.” True, the language used seems to signify that McArdle first and the banks later were not to be express trustees. Indeed, it is made clear throughout that the subscribers to the fund or a committee thereof should give directions as to the disposition of the property. On the other hand, it is quite evident that these parties were acting as fiduciaries, and the characterization of the situation as a passive trust in our earlier decision seems the most apt designation. Certainly while the bank held title to the real estate it was something more than a mere debtor to the subscribers for the amount invested in the realty. When it collected the proceeds, it could hardly have altered its character to that of a mere debtor unless it acted in a manner clearly evidencing its intent to do so and unless the subscribers knew of and acquiesced in the change. Neither of these conditions is shown to have occurred. Stress is placed upon the circumstance that the attorney for the subscribers, who was also attorney for the bank, requested deposit of tlie fund in the interest department of the hank, and later requested that the deposit be held so as to produce interest. But it is difficult to see why this circumstance, if it has any persuasive force, does not tend to indicate that the fund was held by the bank as a trust, rather than as a general deposit. A bank acting as trustee or fiduciary would be expected to produce an increment on funds in its hands. It would also naturally receive a fee for its services, as was the case here. We turn to the “course of dealing” relied upon by the district court to show that the banks could use the funds for their general purposes. All incidents referred to seem either undecisive or even more suggestive of the fiduciary relationship than of the contrary. . First is the cii-cumstance just noted — that interest was credited at the rate of 3 per cent — a course which would seem to be more natural for trust funds than for general deposits. Next reference is made to the fact that the money was left with the bank for a long period of time. Such delay is explained by necessary incidents of the entire transaction, including the litigation with reference to income taxation; the delayed payments provided for in the contract of sale; the necessity of ascertaining who were the present representatives of the original subscribers, leading to the institution of a suit in the state court to determine such ownership; and the financial difficulties, the attempted reorganization, and the later receiverships of the banks. Finally, the large amounts disbursed 'from time to' time for expenses and attorney’s fees, directed by the committee, seem without particular significance. Of 'course, it was the committee, not the bank, which was in general charge of the transaction. But that, we think, goes no further than to show the relationship to be a passive, rather than an express, trust. We conclude that, notwithstanding the district court’s finding, the account must be considered as one held by the banks in a fiduciary capacity, and not as a general account. In re Kountze Bros., 2 Cir., 103 F.2d 785, is not in point. There funds were deposited for a claimed special purpose, but we held the proof insufficient to show that there was an. intended segregation from the general accounts. There the private bankers did no.t hold the funds in a fiduciary capacity. 2. Perhaps more serious is the further claim that these were not funds held in trust “awaiting investment” and hence without the statute. We think, however, that this is too narrow a construction of the statute, and really defeats its intent. If trust funds held for investment are subject to the. statute, but trust funds held for distribution are only general assets of the bank, then we find a serious difference in result following from a very slight, even formalistic, change in the relations of the parties. It would be no great stretch to term this a fund held “for investment,” particularly since the desire of the subscribers for some increment on their funds was made so clear. It was not to be fully paid in for a year and a half; it was to bear interest at a substantial rate; it was subject to various difficulties of adjustment, including income tax litigation and other litigation which remained unsettled on the bank’s failure more than four years after the first receipts were had. Moreover, a broader interpretation should be given to the statute. We think that the provisions for security include in general the fiduciary funds which the- bank is required to keep segregated from its general assets. Such, indeed, is the view taken by the Board of Governors of the Federal Reserve System in their Regulation F promulgated under the power to issue regulations granted by this same statute. This regulation provides that when funds received and held in the trust department of a national bank “awaiting investment or distribution” are deposited in the commercial or savings department of the bank to the credit of the trust department, security for the deposit must be provided in the shape of United States bonds or other specified assets of the bank. Defendants assert in their brief that this regulation was not called to the attention of the court below, and .that therefore we cannot take judicial notice of it. It seems, however, that, while an appellate court is not obligated to notice matters not brought to the attention of the trial court, Line v. Line, 119 Md. 403, 86 A. 1032, Ann.Cas.1914D, 192, yet it may take such notice where- necessary either to affirm, or to show the impropriety of, a decision below. Hunter v. New York, O & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246. With respect to a regulation required by the statute for the carrying into effect of its terms, we should not hesitate to take judicial notice so far as is necessary. The point is not decisive here, since all we are saying is that the interpretation made by the Board of Governors of the Federal Reserve System accords with our own. It also accords with the conclusions reached in the other cases cited. Carcaba v. McNair, supra; Fesenmeyer v. Salt Springs Nat. Bank, supra; see also Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. 3. We do not think the objection that the securities were provided for all the trust funds without definite segregation is sound, especially when asserted by the bank’s receiver. Regulation F above does not require segregation. Such a course, if required, would be a burdensome one, undoubtedly adding to the expense of carrying a trust account, particularly in the case of smaller trusts, We do not see how it adds very much to the security of the funds; it may indeed make each fund less secure by restricting the securities available to it in the event of the bank’s failure. Cf. Legis., 37 Col.L.Rev. 1384. At any rate we think the intent of the statute was complied with. This makes unnecessary consideration of the further question of tracing of the trust funds argued in the briefs. Plaintiffs also argue that adjudication should be had as to securities totaling $20,000 on deposit with the Superintendent of Banks of the State of New York by the new bank for the benefit of its trust funds. While the problem as to such funds would seem identical with that before us, no issue was made as to them by the case below, and we do not pass upon the matter, We think that the securities which the new bank had set aside for the purpose of protecting these funds were legally available for the intended purpose and should be so employed. The judgment is therefore reversed to provide for this re-sulk This particular provision, has been held to he a prohibition against receiving deposits of third persons and not applicable to deposits' of funds held by the bank itself. Carcaba v. McNair, 5 Cir., 68 F.2d 795, certiorari denied 292 U.S. 646, 54 S.Ct. 780, 78 L.Ed. 1497; cf. Fesenmeyer v. Salt Springs Nat. Bank, 2 Cir., 92 F.2d 599; and see, also, Ticonic Nat. Bank v. Sprague, 1 Cir., 90 F.2d 641, affirmed 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926. 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_geniss	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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". Donald M. GOMES, Plaintiff, Appellee, v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, et al., Defendants, Appellants. No. 79-1181. United States Court of Appeals, First Circuit. Argued June 8, 1979. Decided Aug. 31, 1979. Robert B. Mann, Providence, R. I., with whom Mann & Roney, James J. McAleer, Albert B. West, a'nd Manning, West, San-taniello & Pari, Providence, R. I., were on brief, for appellants. Robert D. Parrillo, Providence, R. I., with whom Hanson, Curran & Parks, Providence, R. I., was on brief, for appellee. John G. Poust, Wayne F. Flaza, Margaret S. Garvey, and Rooks Pitts, Fullagar & Poust, Chicago, 111., on brief for The National Federation of State High School Athletic Associations, amicus curiae. Drew S. Days, III, Asst. Atty. Gen., Jessica Dunsay Silver, and Joan F. Hartman, Attys., Dept, of Justice, Washington, D. C., on brief for the United States of America, amicus curiae. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. Donald M. Gomes, a volleyball enthusiast who had played on an all-male volleyball team at his high school in Pennsylvania, was excluded from interscholastic competition when he transferred to Rogers High School in Newport, Rhode Island, for his senior year. Rogers’ only volleyball team was all-female and played in competition under the auspices of the defendant, the Rhode Island Interscholastic League. The League provides interscholastic volleyball competition only for all-female teams and disqualifies teams on which any male plays. As a result, Rogers High allowed Gomes to join its all-female team but did not use him in League competition. Gomes brought this suit against the League at the beginning of its 1979 volleyball season, alleging that its rule against male participation in volleyball competition violated the fourteenth amendment and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686, which generally prohibits sex discrimination in educational programs receiving federal funds, 20 U.S.C. § 1681(a). Without reaching the constitutional issues, the district court ruled in Gomes’ favor on the basis of the following regulation promulgated by the Department of Health, Education and Welfare under Title IX: “(a) General. No person shall, on the basis of sex, be excluded from participation in . any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. (b) Separate Teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection ... is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. . . . ” 45 C.F.R. § 86.41(a), (b) (emphasis added). In the district court’s view, the clause (b) exception for separate-sex teams was made inapplicable by the passage italicized, since defendants sponsored no men’s volleyball teams and opportunities for boys to play volleyball previously had been non-existent. In so interpreting the regulation, the court rejected defendants’ argument that the reference in clause (b) to previously limited athletic opportunities refers to overall athletic opportunities. Under defendants’ interpretation, Rogers did not have to allow Gomes to play in all-female volleyball competition because men had always been offered a very comprehensive athletic program — albeit not one including volleyball. Indeed, Rogers’ own program in particular was said to have been outstanding for men, far exceeding the offerings for women even though women’s opportunities were now improving. The district court rendered its decision on May 1, in the midst of the volleyball season, and ordered the League to accommodate Gomes as a member of the Rogers team. As defendants persuaded us that the district court’s order would disrupt the remainder of the sports season and that there existed a probability of success on the merits, we stayed implementation of that order pending appellate review. We also allowed the motions of the United States and the National Federation of State High School Athletic Associations to participate on appeal as amici curiae, and set the case on an expedited schedule. Despite the speed with which this case reached us, the last interscholastic game of the League’s volleyball season had been played and Gomes was about to graduate from Rogers High School when we heard argument on June 8. Defendants, apparently confident of obtaining a favorable decision on the merits, urged that the case nevertheless was not moot because it involved events “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Plaintiff, by contrast, asked that we dismiss the appeal as moot under DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). As we conclude that the “capable of repetition, yet evading review” exception to the usual definition of a “live” case or controversy necessary for federal adjudication, U.S.Const. art. Ill, sec. 2, does not apply, we agree with plaintiff .that this appeal must be dismissed as moot. We do not, therefore, reach the merits. There remains no live controversy between Gomes and defendants: the volleyball season is over and Gomes, having graduated, will never again attempt to play in interscholastic high school competition. These circumstances are similar to those in DeFunis v. Odegaard, supra, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), which presented a challenge to allegedly discriminatory admissions policies of the University of Washington Law School. DeFunis had attended the school under a Supreme Court order effective pending appeal and was assured of graduating when the Court heard argument on the case. The Court dismissed the case as moot, noting that federal court jurisdiction “ ‘depends upon the existence of a case or controversy’ ” and that “ ‘federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them,’ ” 416 U.S. at 316, 94 S.Ct. at 1705-1706, quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964), and North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), respectively. In this case, too, since Gomes has not sought any monetary relief, nothing that we might decide now as to the merits would affect his rights vis a vis defendants. The definition of “mootness” is not inflexible, of course; federal courts may decide cases that present questions “capable of repetition, yet evading review,” even though the immediate controversy between the parties may have dissipated. Southern Pacific Terminal Co. v. ICC, supra, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Defendants here point out that the Interscholastic League divides the school year into three sport seasons — fall, winter, and spring — and that each lasts something less than three months. As this case, which began with the beginning of the spring season, reached us with exceptional speed and yet still not before the end of the season, they argue that the question of the validity of their rules as to single-sex teams may recur each year and yet always evade review if we consider this case moot. But our focus must be on whether the question will recur not as to other high school students but as to Gomes, a high school senior, who sued only on behalf of himself and not as a class representative. See Sosna v. Iowa, 419 U.S. 393, 398-400, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Just as the DeFunis case did not present a question capable of repetition as to DeFunis, who also sued individually, because he never again would go through the Law School’s admission process, 416 U.S. at 218-19, 94 S.Ct. 1704, so this case does not present such a question as to Gomes. See County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). The district court’s judgment is vacated and the case is remanded for dismissal of plaintiff’s complaint. See Great Western Sugar Co. v. Nelson,—U.S.—, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1979) (per curiam); Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 (1936). So ordered. . Under the district court’s interpretation, the requirement that males be allowed to play on an all-female team would not apply if an all-male team were established. Defendants’ represent, however, that there is insufficient interest in volleyball among their male high school students to permit the successful formation of all-male teams. . There are different rules for women’s and men’s volleyball; most notably, the net is set higher for men than for women. Thus the prospect of mixed-sex competition raised a question as to the rules applicable to the remainder of the season. In addition, a number of the League’s member teams represented private women’s high schools and were unwilling to compete against mixed-sex teams. . The Department of Justice, speaking on behalf of the Department of Health, Education and Welfare, which promulgated the Title IX regulation in issue, indicated that HEW interpreted the Title IX regulation in the manner urged by defendants, and disagreed with the district court’s construction. In its view, the focus of 45 C.F.R. § 86.41 was not on whether men had had opportunities to play volleyball in the past, but rather on whether their overall athletic opportunities had been limited. The intervenor National Federation of State High School Athletic Associations took a similar position. Plaintiff, in oral argument, in urging us to uphold the lower court, stressed arguments other than the district court’s rationale based on the regulation. . The Interscholastic League’s 1979 volleyball season was scheduled from March 27 until approximately May 24. Gomes filed his complaint around March 28 and filed an amended complaint on April 2. The district court held a hearing on Gomes’ request for a preliminary injunction on April 4, issued its opinion on May 1, and entered its order on May 3. We stayed implementation of that order pending appeal and set argument on the merits for the earliest date practicable. . Had this case been brought as a class action by a freshman, sophomore or junior, it would present a question “capable of repetition, yet evading review” as to the class or the individual plaintiff. See Sosna v. Iowa, 419 U.S. 393, 398-400, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). Thus we need not be concerned that the validity of the Interscholastic League’s rule may never be subject to full adjudication on the merits. 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_respond1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). LANG v. ROGNEY. No. 14651. United States Court of Appeals Eighth Circuit. Jan. 15, 1953. Linus J. Hammond, St. Paul, Minn. (R. E. Cummins, St. Paul, Minn., was with him on the brief, Cummins, Cummins, Hammond & Aimes, St. Paul, Minn., of counsel), for appellant. A. Laurence Davis, St. Paul, Minn. (Morgan, Headley, Raudenbush & Morgan, St. Paul, Minn., of counsel), for appellee. Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges. COLLET, Circuit Judge. This is an appeal 'from a judgment for personal injuries. Plaintiff, a resident and citizen of Wisconsin, was struck by defendant’s automobile and injured as he was crossing U. S. Highway No. 12 in front of his home, approximately one mile east of Black River Falls, Wisconsin. Defendant is a resident and citizen of Minnesota. The present action was brought in the United States District Court in Minnesota and tried before a jury. Jurisdiction results from diversity of citizenship and the amount involved. The substantive law of Wisconsin applies. The parties will be referred to here 'as they were designated in the trial court. Defendant’s brief does not comply with the rules of this court, particularly Rule 11(b) relating to points and authorities and the argument. This rule has been in effect in substantially its present form for many years. We have repeatedly called our rules to counsel’s attention in other cases and have occasionally dismissed appeals on motion when a violation was flagrant. Although plaintiff’s counsel directs our attention to the imperfections of defendant’s brief, there was no motion to dismiss. The brief, other than its form and arrangement, is a good brief. Our concern that controversies reaching the courts be determined on their merits in the interest of substantial justice prompts us to subordinate the additional labor entailed upon us, because of the failure of a brief to properly set forth the points and authorities, and the argument under each, to the merits of a case. But the line of demarcation between a brief prepared in conformity with our rules and one which in form and 'arrangement violates our rules yet still may be adequate is sufficiently indefinable to commend compliance with the rules and make their violation at least hazardous. Under the law of Wisconsin a plaintiff may recover when guilty of contributory negligence, if the defendant’s negligence has been established and plaintiff’s negligence is not as great as defendant’s. The Wisconsin statute is: “Sec. 331.045. Comparative negligence; when bars recovery. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the person recovering.” Under the topic entitled “Evidence.Insufficient to Sustain Judgment”, in defendant’s brief, he tacitly assumes that the evidence was sufficient to warrant a finding of negligence on his part and argues the insufficiency of the evidence on the ground that the proven facts show plaintiff guilty of contributory negligence as a matter of law in that plaintiff failed to prove defendant was negligent to a greater extent than plaintiff.- We shall consider the question of the sufficiency of the evidence as that question is presented without separately considering the evidence of defendant’s negligence, since the latter was in our opinion sufficiently established and its extent must be weighed in determining whether plaintiff’s comparative negligence prevents a recovery under the statute above quoted. The evidence must be viewed in the light most favorable to the jury’s verdict. The accident occurred at about 7:30 p. m., Sunday, September 25, 1949. The pavement was dry. The sun had set at 5:56. The time of civil twilight, i. e., the interval of time between sunset and the instant when the center of the sun is 6 degrees 'below the horizon, was 29 minutes. It was practically dark, but, as plaintiff expresses it, “a little twilight yet.” The highway was a much-traveled United States concrete highway. Plaintiff’s home was located approximately 20 feet south of the right-of-way. The right-of-way consisted of a ditch and shoulder in front 'of plaintiff’s house, then a gravel shoulder and a gravel driveway leading to a filling station-garage, store and cafe on the north side of the pavement. The highway in front of plaintiff’s home was straight and level, running substantially due east and west. About 800 to 900 feet east of his home it curved to the southeast. Approximately 600 feet west it curved to the northwest. There were no obstructions to sight from plaintiff’s front gate at the south edge of the right-of-way to the curve in each direction. The lights in plaintiff’s home had been on before he left. There were three or four lights on poles along the south side of the highway between the curves. On the north side of the highway slightly to the west of plaintiff’s home but almost directly across the highway from it was a store, cafe and filling station-garage. These buildings were set back from the highway with the filling station pumps between the building and the highway. Lights were on in and around these buildings. Plaintiff was 75 years of age at the time of the accident and was a night watchman at a factory. His work began at 8:00 p. m. Plaintiff testified that at the usual time, about 7:30 p. m., he left his home to cross the highway to the cafe to call a taxi to take him to work. Pie walked down the path and through the front gate. As he approached the concrete pavement there was no obstruction to his view to the east or west and he could see to both curves. When he got “pretty close” to the concrete he stopped and looked to the east. He did not see any vehicle coming from the east. He looked to the west and saw some cars coming around the curve from the west. He looked back to the east, saw nothing coming from that direction, and walked across the pavement. There was no crosswalk at this point. As he was walking across he could have seen to the curves in both directions. According to his testimony, “I was just stepping — I was just stepped off onto the gravel” on the north side of the pavement when he was struck by defendant’s car, “after I got across”. He did not see the car or its lights. He heard no horn sounded. Nor did he hear.the sound of brakes being applied on defendant’s car. His eyesight was good. Several eyewitnesses to the accident testified in plaintiff’s behalf. Mr. Paul Cooper, a county traffic officer, was in the first car which plaintiff saw coming from the west. Mr. Cooper stopped at a side street approximately 200 feet west of the cafe and the point of the accident to let out two passengers. While he was stopped there he looked up and saw plaintiff crossing the highway. When Mr. Cooper first saw him, plaintiff was practically in the center of the pavement. At the same time Cooper saw defendant’s car with the lights on coming from the east. Practically at the same instant Cooper looked up and saw plaintiff in the center of the highway he heard the screech of the tires on defendant’s car. Cooper testified that — “It seemed to me he (plaintiff) kind of fairly gave a jump to get across ahead of the car.” He saw the car strike plaintiff. It came straight ahead with the tires skidding on the pavement, veering slightly to the right as it stopped. Cooper says that plaintiff was “right o.n the cement” when he was struck and that it seemed to him the car “just kind of knocked him over”, plaintiff falling to the gravel on the north shoulder five or six feet from the edge of the pavement. Cooper measured the skid marks. They were 50 'feet in length and at the last angled a little to the north. Cooper testified it was quite dark. The headlights on his car and other cars, including defendant’s, were on. Cooper could not estimate the speed of defendant’s car coming toward him before it struck plaintiff. He says it was practically stopped when it struck plaintiff, and that a small dent on the right front fender indicated where the car struck plaintiff. The headlight was not broken. The defendant was called as a witness by plaintiff. He dimmed his lights for Cooper’s car, and did not see plaintiff until he suddenly appeared in front of the left front wheel of his car, whereupon he immediately-applied his brakes but was unable to avoid striking him. He said that his car was stopped approximately 15 feet beyond the point plaintiff fell, with the right front wheel a few inches off the concrete and the other wheels on the pavement. That when plaintiff was struck he was thrown “maybe 20 feet all together"’. That there was not time to sound his horn. Mr. Robert Elmore, a student, 15 years old at the time of the accident, testified that he saw the accident. That he saw defendant’s car approaching with the headlights on, at a speed of about 40 miles per hour, 275 to 300 feet east of plaintiff when plaintiff was at about the center of the pavement, looking straight ahead (north). That when plaintiff was five or six feet, from the north side of the pavement the tires on defendant’s car started screeching on the. pavement. That at that time plaintiff appeared to look around at defendant’s car. He estimated the distance between defendant’s car and plaintiff at that time at 50 feet. That plaintiff- was on the concrete, approximately. a foot or a foot and a half from the north edge of the concrete when he was struck. That defendant’s car was traveling approximately 10 miles per 'hour at the time it struck plaintiff. That when plaintiff was struck ‘he was thrown approximately 15 feet and one of his rubbers knocked off and his teeth were knocked out of his mouth. Pearl Sorlie operated the restaurant on the north side of the highway. She says she saw the accident through the window from behind the counter while she was waiting on some customers. She, alone, testified that the lights on defendant’s car were not on. She says plaintiff stopped in the center of the highway and looked in both directions and' then continued on across the highway. She also says that plaintiff was a couple of feet from the north edge of the concrete when he was struck. That the car was traveling 40 miles per hour. That defendant said after the accident that he “didn’t see the man.” May Haldra was driving the car immediately following Cooper’s. She did not see the accident but she heard defendant say that the car lights blinded him and he did not see plaintiff until he struck something, and that he couldn’t have been going over 30 miles per hour. The highway in the vicinity of the accident was zoned and signs were erected establishing the permissible safe speed in each zone. Some distance east of the east curve there was a 40 miles per hour zone. From the east curve west to beyond the point of the accident was a 30 miles per 'hour zone. The Wisconsin statutes provide: “Sec. 85.40. -Speed restrictions. * * “(2) (a) No person shall operate a vehicle at a speed greater than is reasonable and prudent under conditions and having regard for the actual and potential hazards then existing and the speed of the vehicle shall be so controlled as may.be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care. “(b) The operator of every vehicle shall, consistent with the requirements of paragraph (a), operate at an appropriate reduced speed * * * when passing school children or other pedestrians, and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions.” As to lights the Wisconsin statute requires : “Sec. 85.06. Lighting equipment on vehicles. (1) Adequate Lighting Equipment Required. No motor vehicle shall be operated upon or occupy any public highway unless such vehicle is provided with sufficient lights, as required by this section, * * . “(2) Lights Required.- (a) Headlights. Every motor vehicle in use on the public highways except motor cycles shall be equipped with at least two headlights in good working order. Such headlights shall display a white light of sufficient illuminating power under normal atmospheric conditions to reveal any persons, vehicles, or substantial objects two hundred feet ahead of the headlights. Motor cycles shall be equipped with at least one such headlight. ***** “(h) Depressing headlights to avoid blinding drivers. Every person operating or driving a motor vehicle on the public highways shall, when approaching, and about to pass, any other person operating or driving a motor vehicle and traveling in the opposite direction, dim, depress or tilt the front headlights on his motor vehicle so that the rays projected therefrom will not blind the person whom such driver is approaching and about to pass. Sufficient light to see objects for seventy-five feet ahead of the vehicle shall be maintained. This paragraph does not apply to vehicles equipped with acetylene or similar gas lights.” On the question of right-of-way, Section 85.44(4) of the Wisconsin statutes provides: “(4) Pedestrian Right of Way Forfeited when jay Walking. Every pedestrian crossing a highway at any point other than a marked or unmarked crosswalk shall yield the right of way to vehicles upon the highway.” The evidence was sufficient to sustain a finding that defendant was negligent in the following particulars: (a) in operating his car at a higher rate of speed than was proper under the circumstances; (b) in not having his car under such control as would have enabled him to have stopped in time to avoid the accident; (c) in not having lights on his car which when dimmed would have disclosed plaintiff’s presence at a distance of 75 feet, as required by the Wisconsin statute; and (d) in failing to keep such a lookout as would have resulted in him seeing plaintiff at a distance of 75 feet. The first and most serious question is defendant’s contention, above noted, that the facts show plaintiff guilty of such contributory negligence that as a matter of law his recovery was barred, and that plaintiff failed to prove defendant was negligent to a greater extent than plaintiff. The trial court submitted to the jury the question of whether plaintiff was off the concrete and had actually relinquished the right-of-way to defendant at the time he was struck. We have examined the evidence time and again on the question of whether there was any substantial evidence to justify submitting to the jury the question of whether plaintiff was off the concrete and had relinquished the right-of-way at the time he was struck. The major importance of that question will become apparent. We fail to find any justification in the record for a finding by the jury that plaintiff was not on the pavement when struck. Plaintiff says that he was in the best position to know where 'he was at the time he was struck, and that his testimony that — “I was just stepping — I was just stepped off onto the gravel” when he was struck — “after I got across”, was sufficient, coupled with defendant’s testimony that plaintiff was — “just a few feet off it, perhaps only a foot away from the north edge of the concrete”, to justify a finding that he was off the highway when struck, in spite of the positive testimony of all of the disinterested eyewitnesses to the accident that plaintiff was on the concrete slab when struck. The first part of plaintiff’s above-quoted statement is at least ambiguous. He apparently started to say that he was just stepping off of the pavement and then corrected himself and said “I was just stepped off onto the gravel”. Then on cross-examination the following occurred. “Q. And about the time you were about ready to cross the street, or get across- the street, you were struck? A. How? “Q. Just as you were about ready to cross the street you were struck? A. Yes, after I got across — just stepping off from the concrete and that’s the last I could remember.” The effect which plaintiff gives defendant’s statement appears to us to be a misconception of what he intended to say. The skid marks and the testimony of the witnesses fix the direction of the car at only slightly veering to the right or north as it stopped. When it was stopped ten or fifteen feet west of the point of impact, the right front wheel alone was off the pavement and it only a few inches, or at most less than a foot. On cross-examination by plaintiff’s counsel, defendant testified: “Q. You were in the north lane? A. That’s correct. “Q. And approximately where with reference to the north lane? A. Just about in the middle of it. “Q. And your car proceeded directly ahead? A. Yes, it did. Now, you mean directly ahead when? I would like that statement clarified. “Q. Well, you may state what your car did. A. Upon applying the brakes of the automobile, the automobile traveled in more or less a true westerly direction, although at the end of the skid it seemed to veer slightly to the right. So that when the automobile came to rest, as I remember it, the right front wheel was either at the edge of the concrete pavement or perhaps a few inches over on the shoulder. As I remember it, the other three wheels were on the concrete. “Q. At any rate, you didn’t see Mr. Rogney at any place on this highway until you were about 30 or 40 feet away from him? A. Until I was about 40 feet away from 'him and he was in front of my left front headlight, left front wheel, I didn’t see him. “Q. And at that time he was proceeding in a northerly direction? ■ A. That is correct. “Q. He was not running? A. When I first saw him, he was — well, that’s hard to say. Actually it happened very quickly, as you might imagine. He did appear to be lunging— I believe that would be a. good definition of the manner in which he crossed in front of me. “Q. And it is your testimony that he was perhaps within a foot of the north edge of the concrete at the time your car struck him? A. Yes, I would say ■somewhere — he was near the edge of the north of the concrete.” Defendant’s testimony does’ not support the conclusion that plaintiff was off the concrete when struck. The testimony of the disinterested eyewitnesses, called by plaintiff, was positive and unequivocal that plaintiff was on the concrete when struck. The traffic officer Cooper testified: “He was right on the cement.” The witness Elmore said: “I would say approximately a foot, — a foot and a half” on the concrete. And Pearl Sorlie fixed the place of impact — “It would be about a couple of feet on the concrete.” And on cross-examination: “Q. And he didn’t leave the concrete pavement before he was struck? A. No.” There was no evidentiary basis to support a conclusion that plaintiff had yielded the right-of-way. And that would be true even if it could be said that reasonable minds might conclude that plaintiff had just stepped off the concrete when struck. In Grohusky v. Ferry, 251 Wis. 569, 30 N.W. 2d 205, 206, the Wisconsin Supreme Court points out that under the statute a pedestrian interferes with a motorist’s right-of-way although the pedestrian actually had cleared the motorist’s lane when struck. In that case the court said: “We are not to be understood to say that plaintiff had any right to suppose that because he could cross the right hand lane ahead of defendant he would not interfere with defendant’s right of way. That question has been settled adversely to any such contention by Post v. Thomas, supra [240 Wis. 519, 3 N.W.2d 344], and by Weber v. Barrett, 238 Wis. 50, 298 N.W. 53.” At the point plaintiff crossed the highway there was no crosswalk, either marked or unmarked. Therefore, it was plaintiff’s absolute duty to yield the right-of-way to defendant and his failure to do so would be, under the law of Wisconsin, negligence as a matter of law. In Crawley v. Hill, 253 Wis. 294, 34 N.W.2d 123, 124, the Wisconsin Supreme Court said: “Sec. 85.44(4), Stats, requires that a pedestrian crossing a highway at a point other than a crosswalk shall yield the right of way to cars on the highway. Crawley [plaintiff] did not do that here. The fact that this was outside the city limits did not lessen his duty of yielding the right of way. See Grohusky v. Ferry, 251 Wis. 569, at page 572, 30 N.W.2d 205. His negligence in that respect is an established fact.” In DeGoey v. Hermsen, 233 Wis. 69, 288 N.W. 770, 772, in passing upon the question of whether plaintiff’s failure to yield the right-of-way in crossing a highway at a point other than a crosswalk was negligence as a matter of law, the court said: “Under these circumstances plaintiff was guilty of negligence in this respect as a matter of law, and this negligence, as well as that in respect of lookout, should have been compared with that of defendant.” The trial court should have instructed the jury that plaintiff was guilty of contributory negligence as a matter of law and that fact was to be taken into consideration in determining whether plaintiff’s total negligence was equal to or greater than defendant’s. Although plaintiff was guilty of contributory negligence as a matter of law in this particular, it would not necessarily follow, as the authorities hereinafter referred to will show, that plaintiff’s negligence was equal to or greater than defendant’s. The general verdict sheds no light upon whether the jury found that plaintiff was negligent in not yielding the right-of-way and weighed that negligence against defendant’s. If there had been a special verdict and the jury had found plaintiff negligent in this particular and still had found that plaintiff’s total contributory negligence did not equal or exceed defendant’s, it would be apparent that defendant had obtained all of the consideration from the jury which an instruction to that effect would have given, and defendant would be in no position to complain that the instruction was not given. But absent such a finding by a special verdict, we cannot assume that the jury did so find, and if it did not, we cannot assume that it would not have found plaintiff’s total negligence equal to or greater than defendant’s if it had been instructed that plaintiff was guilty of negligence as a matter of law for not yielding the right-of-way. Since the evidence compelled a finding that plaintiff had not yielded the right-of-way when struck, the court should have instructed the jury that plaintiff was guilty of negligence as a matter of law in that particular, and defendant is entitled to a new trial in order to have the jury weigh that and any other contributory negligence of plaintiff against defendant’s negligence. That is the precise reason the Supreme Court of Wisconsin directed a new trial in DeGoey v. Hermsen, 233 Wis. 69, 288 N.W. 770, supra. The evidence was also sufficient to-justify a finding that plaintiff was negligent in failing to keep a proper lookout. As stated in Saindon v. Lucero, 10 Cir., 187 F.2d 345, 347: “A pedestrian at night is in a position to see oncoming automobiles at a great distance. The drivers of the automobiles may see him only within the range of their lights, but the ability of drivers to observe a pedestrian even within the range of their lights may be affected by such conditions as lights from other automobiles and the color of clothing worn by a pedestrian which blends into the color of the pavement.” This was a busy United States Highway. Plaintiff lived by it and knew that. He looked to the east before he went onto the pavement but did not look again as-he crossed the pavement. Plaintiff insists he was not charged with the obligation under the law to look again. The cases he cites in support of that argument simply hold in effect that under certain circumstances the failure of a pedestrian to look again will not constitute such negligence as a matter of law as to bar his recovery. Salsich v. Bunn, 205 Wis. 524, 238 N.W. 394, 79 A.L.R. 1069; Schwartz v. Eitel, 7 Cir., 132 F.2d 760; Moody v. Milwaukee, etc., 173 Wis. 65, 180 N.W. 266. Under some circumstances it would and under other circumstances it would not be such negligence as to bar recovery. But that the facts in this case would justify a conelusion of negligence is not open to argument. The degree of that negligence, however, is another question. Defendant contends.that the evidence of plaintiff’s negligence is such that we should hold as a matter of law that his negligence was equal to or greater than defendant’s and hence he cannot recover. We do not agree. The Wisconsin authorities which we have examined lead us to the following conclusions as to the law of Wisconsin: That plaintiff’s failure to yield the right-of-way was, under’ the statute, negligence as a matter of law. See cases heretofore cited and Post v. Thomas, 240 Wis. 519, 3 N.W.2d 344. That ordinarily the comparison of plaintiff’s negligence with that of defendant is the sole province of the jury when plaintiff’s contributory negligence has been established. Carr v. Chicago, Northwestern R. Co., 257 Wis. 315, 43 N.W.2d 461. That although the court has not only the power but it is its duty to so hold when it appears that the negligence of the plaintiff is as a matter of law greater than that of defendant, Quady v. Sickl, 260 Wis. 348, 51 N.W.2d 3; Peters v. Chicago, M., St. P. & P. Ry. Co., 230 Wis. 299, 283 N.W. 803, it is in rare cases that the court will disturb a jury’s comparison of negligence, and the instances in which it can be said as a matter of law that the negligence of the plaintiff is equal to or greater than that of defendant will ordinarily be limited to cases where the negligence of each is of precisely the same kind and character. McGuiggan v. Hiller Bros., 209 Wis. 402, 245 N.W. 97; Quady v. Sickl, 260 Wis. 348, 51 N.W.2d 3; Cherney v. Holmes, 7 Cir., 185 F.2d 718; Parker v. Motor Transport Co., 253 Wis. 365, 34 N.W.2d 115. In the first case decided after the present comparative negligence statute was enacted in Wisconsin, the court appears to have laid the foundation for the rule last above stated, wherein it said in Brown v. Haertel, 210 Wis. 345, 244 N.W. 630, 632: “This is the first time that section 331.045 has received the consideration of this court. We shall not now say that a case cannot arise where the court can decide the respective negligence of the parties to be equal. * * * If the negligence of each constituted [consisted] simply in a failure to look, and they both had ample opportunity to discover each other, it might be that their negligence would have to be held equal.” In that opinion the court refers to the language appearing in one of its previous cases, decided prior to the present statute, Dohr v. Wisconsin Central Ry. Co., 144 Wis. 545, 129 N.W. 252, 255 wherein Chief Justice Winslow said: “When two persons are negligent and injury to one proximately results from the combined negligence of both, it must often be a very delicate and difficult question to decide whether the negligence of one was greater than that of the other, and contributed in a greater degree to produce the injury. There is no yardstick with which to measure the two acts of negligence, nor scales with which to weigh them.” After the enactment of the present comparative negligence statute the rule has developed as we have stated it above. Only when the negligence of each is of the same kind and character does the court find a sufficient yardstick with which to measure the acts of negligence and scales with which to weigh them. It is unfortunate, in the present case, that the trial court did not submit special interrogatories in accordance with the Wisconsin practice, which would have developed the jury’s conclusion as to which particular assignments of negligence submitted on the part of the defendant, and contributory negligence on the part of the plaintiff, the jury felt the parties were guilty of, and the comparative per cent of negligence of each which contributed to bringing about the accident. More will be said on that subject later in connection with the defendant’s assignment of error in that regard. Since that was not done, it is incumbent upon us to do that which we have done, and point out which assignments of negligence and contributory negligence constituted submissible issues, and inasmuch as it is the court’s duty in the final analysis to determine whether there was sufficient evidence to support the jury’s finding on each issue and defer to the jury’s conclusion on all issues which were submissible, we asume that the jury by its general verdict in favor of the plaintiff found the defendant guilty of negligence on each of the issues heretofore enumerated. And in testing the correctness of the jury’s general verdict in favor of the plaintiff, we assume that the jury found the plaintiff guilty of contributory negligence on each of the issues of failure to keep a proper lookout and failure to yield the right-of-way, which, as pointed out above, the evidence would have supported. In doing that we have done all that the defendant asks or can ask. Under the facts in this case it is readily obvious that the negligence of the parties was not of the same kind and character. It is true that there may be some duplication in the defendant’s negligence in operating his car at an excessive rate of speed and his negligence in failing to keep a proper lookout,, and in the defendant’s negligence in failing to keep a proper lookout and in failing to have the proper kind of lights. See Reynolds v. Madison Bus Co., 250 Wis. 294, 26 N.W.2d 653. But defendant’s negligence in the speed that he was driving and his negligence in failing to have proper lights are entirely different in kind and character from the plaintiff’s negligence in either failing to keep a lookout or yielding the right-of-way. Under these circumstances, the reviewing court does not have the right, under the law of Wisconsin, to say as a matter of law that the plaintiff’s negligence was greater in degree than that of the defendant. There is, therefore, no justification under the law of Wisconsin for holding as a matter of law that plaintiff’s contributory negligence was equal to or greater than defendant’s. The defendant contends that the trial court committed reversible error in not submitting special interrogatories to the jury to be answered in a special verdict. Defendant recognizes the fact that the submission of special interrogatories made mandatory in Wisconsin by statute upon timely request, Pearson v. Kelly, 122 Wis. 660, 100 N.W. 1064; Dick v. Heisler, 184 Wis. 77, 198 N.W. 734; Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003, 49 L.R.A. 475, is procedural and appears to have been left to the discretion of the trial court by Rule 49(a, b) of the Federal Rules of ‘Civil Procedure, 28 U.S.C.A. But it is argued that the substantive law of Wisconsin on the construction and application of the comparative negligence statute makes it necessary to a just and true determination of the comparative negligence of the parties that the special interrogatories be used. It is of material assistance to any court in cases involving the Wisconsin comparative negligence statute to use the Wisconsin procedure relative to special interrogatories. But in federal courts the question is, as defendant recognizes, one of procedure, controlled by Rule 49’(a, b) of the Federal Rules of Civil Procedure, and is within the discretion of the trial court. Skidmore v. Baltimore & O. R. Co., 2 Cir., 167 F.2d 54; Bank of Nova Scotia v. San Miguel, 1 Cir., 196 F.2d 950. Error is assigned because of the failure of the trial court to give an instruction requested by defendant telling the jury that the evidence overwhelmingly showed that there were lights on defendant’s car at the time of the accident and that the evidence of one of the witnesses (Mrs. Sorlie) that she did not observe lights on defendant’s car should be disregarded. The requested instruction went further than that. It also contained the charge: “I instruct you that as a matter of law you cannot and must not find that the defendant did not have proper lights on his automobile immediately prior to and at the time of the happening of the accident.” In view of defendant’s own testimony that he did not see plaintiff until he was within 40 or 50 feet of him, and the statute which required defendant’s car to be equipped with lights which, when dimmed, would disclose objects 75 feet ahead, the giving of the requested instruction would have been improper. The court did not submit the specific issue of whether the lights on defendant’s car were on at the time of the accident but after reading the statute heretofore quoted to the jury, did submit the question of whether “the defendant failed to display such lights as required by said statute”. This issue was properly submitted. The court gave an instruction embodying the doctrine variously referred to as “last clear chance”, “discovered peril”, or “humanitarian doctrine”. Complaint is now made that no such rule of law is recognized in Wisconsin. Switzer v. Detroit Investment Co., 188 Wis. 330, 206 N.W. 407; Butts v. Ward, 227 Wis. 387, 279 N.W. 6, 116 A.L.R. 1441; Tesch v. Milwaukee Electric Ry. & Light Co., 108 Wis. 593, 84 N.W. 823, 53 L.R.A. 618. No such exception was made to the instruction in the court below. It may not be urged now. Rule 51, Federal Rules of Civil Procedure. Defendant contends it was error for the court to instruct the jury in effect that it was defendant’s duty to drive his automobile at such a rate of speed that he could stop within the range of his vision and if blinded by lights of another car he should drive at such speed and under such control which would enable him to stop within such distance as he could see ahead. We find an objection to this instruction incorporated in defendant’s motion for new trial, but we fail to find any exception taken at the time of the trial covering the complaint now made. The objection to the instruction in the motion for new trial was not timely. It may not be considered now. Further, the Supreme Court of Wisconsin held in Quady v. Sickl, 260 Wis. 348, 51 N.W.2d 3, that a driver blinded by lights of an approaching vehicle was negligent in proceeding at undiminished speed under such circumstances. The cause is reversed and remanded for a new trial. . Speedometer measurement showed this distance to be approximately 2,000 feet, but plaintiff estimated it at about 50 rods. We apply his estimate as more favorable to him. . Quady v. Sickl, 260 Wis. 348, 51 N.W.2d 3; Parker v. Motor Transport Co., 253 Wis. 365, 34 N.W.2d 115; McGuiggan v. Hiller Bros., 209 Wis. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA, for the Use and Benefit of, Grinnell Fire Protection Systems Company, Inc., Appel-lee, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellant. No. 81-1632. United States Court of Appeals, Third Circuit. Argued Nov. 12, 1981. Decided Dec. 3, 1981. Daniel Mungall, Jr. (argued), Stradley, Ronon, Stevens, & Young, Philadelphia, Pa., Michael J. Kearney, Jr., Weis & Weis, Pittsburgh, Pa., for appellant. David G. Klaber (argued), Thomas E. Bir-sic, Kirkpatrick, Lockhart, Johnson & Hutchinson, Pittsburgh, Pa., for appellee Grinnell Fire Protection Systems Company, Inc. Before SEITZ, Chief Judge, GARTH, Circuit Judge, and POLLAK, District Judge. Honorable Louis H. Poliak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT SEITZ, Chief Judge. This is an appeal by Fidelity and Deposit Company of Maryland (F&D) from a final judgment of the district court granting the motion of appellee Grinnell Fire Protection Systems Company, Inc. for summary judgment. Jurisdiction in the district court was based upon diversity of citizenship, and this court has jurisdiction under 28 U.S.C. § 1291 (1976). I. W.M. Anderson Company, as principal, and F&D, as surety, executed and delivered a Labor and Materials Payment Bond to the Redevelopment Authority of the City of Philadelphia (the Authority) in connection with a construction contract between Anderson and the Authority. The payment bond stated that “[i]n no event shall the surety be . . . subject to any suit, action or proceeding thereon that is instituted later than one year after the complete performance of said contract and final settlement thereof.” Grinnell was a subcontractor of Anderson. Anderson currently owes Grin-nell $30,227.12. All adjustments made in the contract price between the Authority and Anderson were agreed upon by August 1978 with the exception of three items that were ultimately contained in the last change order. This change order was signed by Anderson on October 14. All three items, however, had been submitted to and considered by the Authority prior to August, and the Authority apparently reached a judgment before October 14 about what it considered should be the adjustments to the contract price because of those three items. On September 25, Anderson wrote the Authority inquiring whether the Authority would agree to process Anderson’s account if Anderson withdrew certain other claims against the Authority. A schedule was submitted showing amounts and items in dispute, as well as amounts that the Authority had offered with respect to the three adjustments in the last change order. The letter indicates that Anderson was willing to accept the figures offered by the Authority, and they were ultimately encompassed in the change order. The Authority’s construction manager approved the last change order on November 17, and the architect approved it on November 28, 1978. On November 15, Anderson signed the Application and Certificate for Payment (the Certificate), which included the adjustments from the last change order. The architect approved the Certificate on December 20, and the Authority’s construction manager signed it on January 2, 1979. Grinnell instituted this action for the balance on October 5, 1979. The parties filed cross-motions for summary judgment. These motions posed the question whether Grinnell’s suit against F&D was timely brought. The question was two-fold: (1) whether the Pennsylvania statute of limitations barred the suit for reason that it had not been brought within a year from the date on which Grinnell concluded the provision of labor and material; and (2) whether the suit was barred because F&D had not been sued within the limitation period contained in the performance bond. Grinnell argues that “final settlement” in the payment bond’s limitation period refers to the date of execution by the architect of the Certificate. F&D asserts that “final settlement” refers to the time when the Authority determined the amount the contractor was entitled to receive under the contract and that this determination had been made by the Authority more than a year prior to the institution of the suit. The district court granted summary judgment in favor of Grinnell. F&D appeals. II. Under controlling Pennsylvania law, the parties may agree on appropriate limitation periods. See Insurance Co. of North Amer-ica v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971). F&D contends, however, that the contractual limitation provision, by its terms, was not intended to lengthen Pennsylvania’s statute of limitations, which F&D argues began running after Grinnell’s work was completed and accepted, and thus had run prior to the commencement of this action. F&D maintains that the language of the payment bond was not intended to change the period which Grinnell may have under statutory limitation provisions to bring suit, but merely establishes an additional prohibition against suits brought more than one year after performance and final settlement. The Pennsylvania statute of limitations measurement is clear, definite, and based upon factors known to and under the control of the supplier, and F&D argues that there is no need to distort the definition of final settlement to serve policy considerations. In a word, F&D’s contention is that final settlement is a term of art that does not have any particular significance to the Authority, to the obligors on the bond, or to the suppliers, and that under such circumstances, there can hardly be any meaningful effort to ascertain objective intent or purpose to be served by the clause. We reject F&D’s argument for two reasons. First, the terms of the payment bond only relieve F&D from liability on suits instituted more than one year after completion and final settlement of Anderson’s contract with the Authority. It is undisputed that the phrase “final settlement” is a term of art with origins in federal statutory and decisional law, and occurred when the Authority administratively determined the amount it considered to be due to Anderson upon the completion of the contract. We think that it is reasonable that the parties would agree to start the period of limitations from the date of that event, which Anderson, its surety, and its subcontractors are readily able to ascertain. Second, F&D’s construction would render the contractual limitation language a nullity. Its construction would determine the timeliness of suits on the payment bond strictly by reference to the limitation period set forth in Pennsylvania law, thereby making the contractual limitation provision superfluous. III. F&D’s primary contention is that the district court incorrectly found that the contractual limitation period in the payment bond began when the architect determined the amount due Anderson (December 20, 1978) or when an Authority representative approved the Certificate (January 2, 1979). F&D raises three objections to this determination: (1) the stipulated record permits a conclusion on the basis of uncon-troverted facts that the Authority’s determination of the amount due Anderson had been made more than a year prior to the institution of this action; (2) even if such a conclusion is not permissible on this record, summary judgment is impermissible because the record is not sufficiently complete to support a determination as to when the Authority’s approval was made; and (3) in any event, the conclusion of the Court below was not supported by the record. The basis of these objections is F&D’s contention that the facts relating to the time of “final settlement” were not stipulated and cannot be obtained from documents. The information that F&D argues should have been before the district court includes evidence on how the Authority administratively determines the amount considered by it to be due to the contractor. However, F&D’s arguments are irrelevant, and summary judgment was correct, if the district court correctly concluded that the architect possessed the authority to determine the amount due Anderson, because then evidence concerning the Authority’s administrative procedures is immaterial. Both parties agree that the district court correctly concluded that the principles of Illinois Surety Co. v. United States, 240 U.S. 214, 36 S.Ct. 321, 60 L.Ed. 609 (1916), apply in interpreting the term “final settlement”. See Commonwealth v. Globe Indemnity Co., 312 Pa. 244, 247-48, 167 A. 576, 577 (1933) (concluding after citing a number of federal cases, including Illinois Surety, “that ‘final settlement’ refers to the computation by the proper governmental authority of the amount which is finally owing under the contract”). Thus, there are two issues before us: (1) under Illinois Surety, does the architect possess the authority to determine finally and administratively the amount due Anderson? and (2) if so, is there any dispute as to a material fact that precluded the district court from establishing December 20, 1978 as the date of final settlement? Illinois Surety involved a suit brought under a federal statute by laborers upon the payment bond of a public contractor building a post office. At issue was whether the plaintiffs commenced suit more than six months but less than one year after the date of complete performance and final settlement of the contract between the principal contractor and the. government. In ascertaining the proper date of final settlement, the United States Supreme Court said: The pivotal words are not “final payment,” but “final settlement,” and in view of the significance of the latter term in administrative practice, it is hardly likely that it would have been used had it been intended to denote payment. We think that the words “final settlement” in the [federal statute] had reference to the time of this determination when, so far as the government was concerned, the amount which it was finally bound to pay or entitled to receive was fixed administratively by the proper authority. It is manifestly of the utmost importance that there should be no uncertainty in the time from which the six months’ period runs. The time of the final administrative determination of the amount due is a definite time, fixed by public record and readily ascertained. As an administrative matter, it does not depend upon the consent or agreement of the other party to the contract or . account. The authority to make it may not be suspended, or held in abeyance, by refusal to agree. Whether the amount so fixed is due, in law and fact, undoubtedly remains a question to be adjudicated, if properly raised in judicial proceedings, but this does not affect the running of the time for bringing action under the statutory provision. Id. at 218-19, 221, 36 S.Ct. at 322-23. Accord, Globe Indemnity Co. v. United States, 291 U.S. 476, 54 S.Ct. 499, 78 L.Ed. 924 (1933). The Illinois Surety Court interpreted final settlement as a definite, ministerial act performed in accordance with established administrative procedures by the person authorized to determine amounts due the contractor. The Court expressly stated that the Government’s administrative determination of the amount did not depend upon the agreement of the contractor or upon whether that determination was ultimately correct. See 240 U.S. at 221, 36 S.Ct. at 323-24. It is the administrative determination alone that constitutes final settlement. The Court also recognized that the date of final settlement must be a clear and readily ascertainable event to ensure the protection of subcontractors’ rights through adequate notice. The subcontractor typically has no direct contractual or other relationship with the owner and is, therefore, not generally privy to the status of negotiations and communications between the principal contractor and the owner. Having a clear date of final settlement helps to achieve one of the principal objectives to be accomplished through the posting of a payment bond— the financial protection of subcontractors, who are typically excluded from the protections offered by local mechanic’s lien laws. See Visor Builders, Inc. v. Devon E. Tran-ter, Inc., 470 F.Supp. 911, 919 (M.D.Pa. 1978). In this case, the parties did not stipulate to a description of the procedure followed by the Authority to determine the amount due Anderson on the completion of the work. The administrative procedure by which the architect approves the work, however, is set forth in subparagraph 9.7.2 of the American Institute of Architect’s (A.I.A.’s) General Conditions, which were incorporated into the contract. Subpara-graph 9.7.2 provides: Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said Final Certificate, is due and payable. For purposes of judging the appropriateness of summary judgment, we must assume that the Authority had made its administrative determination as to what it would do with respect to the Anderson claims prior to September 25, 1978. It does not follow, however, that a final settlement as that term is used in the contract had been made by that date. We believe that the procedures set forth in the contract, especially subparagraph 9.7.2, fulfill completely and precisely the requirements for final settlement enunciated by the Court in Illinois Surety. The contract expressly delegates the authority to determine the amount of payments due Anderson under the contract: “The Architect shall determine the amounts owing to [Anderson] and shall issue Certificates of Payment in such amounts.” Subparagraph 2.2.9 expressly provides that “[t]he Architect shall conduct inspections to determine the Dates of Substantial Completion and Final Completion . . . and shall issue a final Certificate for Payment.” The architect is the representative of the Authority formally charged with the administrative responsibility and authority regarding final completion and the final amount due the contractor. Furthermore, the documentation provided by the Certificate satisfies the requirement that final settlement be at a “definite time, fixed by public record and readily ascertainable.” Illinois Surety, 240 U.S. at 221, 36 S.Ct. at 324. While agreeing that Illinois Surety pronounces the controlling rule of law, F&D seeks to distinguish the facts of Illinois Surety on two grounds. In Illinois Surety, the Secretary of the Treasury was in charge of the construction of a post office, and an architect exercised general supervision over the project. The Secretary was authorized to remit the whole or any part of the contract amount to the contractor. On the day that the architect was advised of the completion of the work, he recommended to the Secretary that a voucher should be issued to the contractor for a stated amount. On that same day, the Secretary approved this recommendation. The Supreme Court held that final settlement within the meaning of the statute occurred on that day. F&D’s first argument is that the role of the Certificate is far different in this case than any documentation issued in Illinois Surety: the Certificate is used here to obtain progress payments and then the final payment, and the Authority had decided long before its execution the amount it considered to be due Anderson. F&D also argues that the architect here did not have the authority to make the administrative determination of the kind and character contemplated by the Court, primarily relying on the fact that the Authority deleted from the contract much of the A.I.A.’s General and Supplementary Conditions that give the architect broad powers in the administration of a contract. We find little significance, however, in these distinctions. Assuming, as we must, that the architect’s role in approving the Certificate and thus making the final determination was minor and purely ministerial, we believe that it was necessary for final settlement. Second, F&D argues that neither Illinois Surety nor Globe Indemnity suggests that a contractual provision has any bearing on the time of final settlement. Those cases focus on the internal administrative governmental process by which the government made its determination as to the balance it considered due under the contract. We believe, however, that, although the administrative procedures necessary for determining the amounts due could have been defined by reference to administrative practice, here they were defined by the contract. Thus, we hold that the architect’s execution of the Certificate satisfies Illinois Surety’s requirement for final settlement. We also conclude that the contractual procedures in this case constitute the sole administrative procedure to be followed in making a final settlement. We reach this conclusion for two reasons. First, under the contract, the architect, not the Engineering Department of the Authority, was the representative of the Authority empowered, at least formally, to determine final completion and the amounts due the contractor, including the final amounts. F&D argues that the substance of the procedure described in subparagraph 9.7.2 was not followed in this case. Specifically, change orders with respect to additions to or deletions from the contract were prepared originally by the Engineering Department of the Authority and then submitted to the contractor for execution. The Authority’s representatives determined the fact of completion and the amount payable to Anderson without participation of the architect. Presumably, F&D is arguing from this fact that the architect played an insignificant role. However, we have already determined that the ministerial nature of the architect’s role is not insignificant and that his approval of the Certificate is necessary for final settlement. Second, F&D’s argument that final settlement had been made before September 25, 1978 fails to persuade us that a date could be discovered before the Certificate is approved by the architect which is a “definite time, fixed by public record and readily ascertainable” as required by Illinois Surety. The ad hoc procedure suggested by F&D effectively removes the requisite elements of reasonable certainty and finality from the decisionmaking process of the Authority and, therefore, deprives subcontractors and materialmen of any reasonable notice as to when the limitation period begins. In effect, F&D is asking this Court to deprive subcontractors such as Grinnell of the very bond protection that the Authority sought to provide for them and for which F&D was compensated. Its argument implies that Grinnell should be omniscient— that Grinnell should be able to sense when a decision is reached in the mind of a public official, perhaps not even an official named in the governing contract, or at a private meeting of public officials, and act accordingly at its peril. Such a position is not only contrary to law and fundamental fairness, but it defeats the strong public policy of protecting subcontractors on public projects. Moreover, the position advocated by F&D would encourage subcontractors to file suit against corporate sureties as soon as the subcontractors complete work on a site to be certain that they would not be foreclosed from recovery by an unknown and unascertainable “decision.” A grant of summary judgment should be upheld if it is apparent that no genuine issue of fact exists under the proper legal interpretation or analysis. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974). Given the undisputed contractual terms present in this case, this standard is satisfied here, because no genuine issue of material fact exists. It is undisputed that Anderson did not submit its subparagraph 9.7.2 Certificate to the Authority until November 15, 1978 and that the architect approved and executed Anderson’s Certificate on December 20. Since Grinnell’s suit was instituted on October 5, 1979, within one year of the approval and execution date of Anderson’s Certificate, its action was timely filed, and summary judgment for Grinnell was appropriate. IV. The order of the district court granting Grinnell’s motion for summary judgment will be affirmed. . F&D did not participate in the selection of the bond form. The Authority took the language for its payment bond from the federal and state precedent where the clause “complete performance of said contract and final settlement thereof’ had come to have an accepted meaning. It took subparagraph 9.7.2 from the American Institute of Architect’s (A.I.A.’s) form book. F&D asks us to take judicial notice of the fact that the one-year limitation period provided in the A.I.A.’s suggested bond form is measured from the date of the last work by the contractor. F&D thus argues that subpara-graph 9.7.2 should not be used as a means for interpreting the payment bond clause taken from an entirely different context. We believe, however, that it is irrelevant to our review of the district court’s decision in this case which bond form the A.I.A. suggests. . F&D argues that a fair reading of both Illinois Surety and Globe Indemnity indicates that the Court’s statements concerning readily ascertainable dates were descriptive observations made by the Court with respect to the event which it determined to be the final settlement and were not necessary criteria for identifying the event. We disagree. The language of those cases indicates that, in establishing a date for final settlement, the Court chose one that was readily ascertainable. See, e.g., Illinois Surety, 240 U.S. at 221, 36 S.Ct. at 324 (quoted supra). In Globe Indemnity, the Court, in foreclosing a supplier’s action because it had improperly assumed that the determination of the General Accounting Office rather than the Department of Interior was the time of final settlement for limitation purposes, stated: The policy of the statute to afford protection to the interests of laborers and material-men would not be effected unless .. . the date of final settlement which fixes the time within which suit is permitted could be ascertained with reasonable certainty and finality. A determination, made and recorded in accordance with established administrative practice by the administrative officer or department having the contract in charge, that the contract has been completed and the final payment is due, fulfills these requirements. 291 U.S. at 483, 54 S.Ct. at 501 (citations omitted). . F&D argues that the contention that the date of execution by the architect of the Certificate is the date of final settlement is subject to the same infirmity which led the Court in Illinois Surety to reject “final payment” as the equivalent of final settlement: The terms are different. It is certainly true that the parties could have used a more descriptive term than they did to show the intention that the one-year period start from the date of the Certificate. We are not persuaded, however, that the parties’ failure to use more descriptive language undermines our interpretation of the words that they chose. Question: 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_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. H. H. BECKANSTIN, Appellant, v. UNITED STATES of America, Appellee. No. 15773. United States Court of Appeals Fifth Circuit. April 25, 1956. Rehearing Denied May 24, 1956. James I. McCain, New Orleans, La., for appellant. Jack C. Benjamin, Asst. U. S. Atty., New Orleans, La., George R. Blue, U. S. Atty., New Orleans, La., for appellee. Before HUTCHESON, Chief Judge, and-TUTTLE and CAMERON, Circuit Judges. CAMERON, Circuit Judge. The appellant, H. H. Beckanstin, was convicted on one count of an indictment charging perjury in a civil suit in the United States District Court for the Eastern District of Louisiana. The indictment was in three counts, but two of thém were dismissed. The indictment was brought under 18 U.S.C.A. Sec. 1621, and the prosecution was based upon appellant’s alleged false statement as to where he graduated from architectural school. His attorney asked appellant: “What architectural school did you graduate from?”; and appellant responded “Massachusetts Institute of Technology.” He admitted later in the trial that, while he had attended that school, he had not graduated therefrom. The case is before us on appellant’s contentions that the testimony wás not about a material matter and that the evidence shows, as a matter of law, that appellant had no intent to deceive. The alleged perjured testimony was given in a civil damage suit brought in the Court below by appellant against one Emanuel Grizzaffi and tried in 1951. That was a. suit seeking damages appellant alleged, he had sustained by reason of an unsuccessful criminal prosecution Grizzaffi had instituted against him in a Louisiana State Court. That criminal prosecution had been instituted as the result of a controversy between appellant and Grizzaffi in connection with a house appellant, as contractor, had built for Grizzaffi in 1945. It is important to understand the setting in which the alleged perjured testimony was given in order to determine the real quality and import of the act of appellant in testifying to what,' according to his unequivocal statement, was not true. He had just been placed on the stand by his attorney, Mr. Blanchard, at the beginning of his civil damage suit against Grizzaffi. He was first asked to give his name, his residence, and his profession and the attorney then asked, “What architectural school did you graduate from?” Immediately after appellant had made his answer, “Massaehusetts Institute of Technology”, the Court interrupted the examination with a series of questions concerning a statement appellant had made to the effect that he was registered as an architect in every state of the Union. This had the effect of taking the attention of all engaged in the trial from the quoted question and answer with respect to which appellant is now being prosecuted. No one connected with appellant’s case then on trial seemed to have caught the misstatement except his wife, then his fiancée. That night, while she, appellant and the lawyer were at dinner, she asked if appellant had not testified that he graduated from M. I. T. Appellant immediately responded, “Oh, no”' — that he had merely attended the school. She countered with the statement that she understood that he answered that he had graduated from the school; and the three had a discussion as to whether the mistake, if made, should not be cleared up. The lawyer stated that he did not consider it important, and the matter was then dropped and the mistake was not voluntarily corrected. Grizzaffii’s attorney accordingly seized the opportunity to score a telling point and confronted appellant with a telegram from M. I. T. stating that he had attended the school, but had not graduated; and appellant promptly conceded that this was true. The foregoing sequence of events was established in the Court below in this trial by the testimony of Mr. Blanchard, the appellant and his wife. The Court below took hold of Mr. Blanchard, examining him vigorously in an effort to bring out from him that he had used the word “graduate” advisedly and because his client, the appellant, had so informed him. Mr. Blanchard denied that categorically and stated that appellant had not told him that he had graduated from any school of architecture, and that he had chosen his words inadvertently and without any thought of obtaining any advantage. At the time he asked the question he did not even know which school appellant had attended. Appellant testified that he did not know he had stated that he was a graduate of M. I. T., not catching the form of the question; that he was manifestly confused in his answer, that he never intended to convey that impression or to deceive anyone. His attorney verified these statements, also disclaiming any ulterior motive. In the face of this undisputed testimony we are of the opinion that the Government failed to establish the materiality of the testimony or the presence of the essential ingredient of intent to deceive. The testimony upon which the prosecution is predicated was given during the introductory stage of the examination of the witness. The whole series of questions was such as is normally expected when a litigant or witness is being identified to court and jury. But for the prompt interposition of the Court in connection with an answer to a previous question, it is likely that the mistake would have been caught at the time. At all events, it is clear that the answer was a mistake and that it would have been cleared up promptly when the young lady brought it to the attention of the appellant and his attorney except for the advice of the attorney that the question and answer were unimportant and that appellant ought not to be concerned about it. The materiality of an alleged false statement under the statute defining perjury is for the court, and the Court below charged the jury, as a matter of law, that the statement was material. With this we do not agree. The question and answer were preliminary and for the purpose of identification. They could not, under the circumstances, have had any material bearing on the issue in a suit for damages for false arrest and malicious prosecution. Whether or not Beckanstin had graduated from the school was of no consequence in resolving the issues involved in that suit. Under the facts here set forth the trial Court should have ruled that the false testimony was not, in fact, material. Moreover, in order to constitute perjury, a false statement must be made with criminal intent, that is, with intent to deceive, and must be wilfully, deliberately, knowingly and corruptly false. The positive evidence here all shows that, although the answer was false, the witness had not grasped the form of the question, and had not knowingly or wilfully made a false answer with intent to deceive. The circumstances corroborate the positive testimony. The advice of counsel is also important in determining whether appellant made the statement with a corrupt motive. As soon as he was acquainted with the fact that he had probably made a misleading statement he was ready to correct it, but the attorney did not consider that course necessary or advisable. Willingness to correct the misstatement, though not ordinarily a defense to a perjury prosecution, is potent to negative a wilful intent to swear falsely. The Court of Appeals of the Third Circuit, in a case involving facts not unlike those before us, expressed the general rule thus : “To sustain a conviction for perjury the burden is upon the government to establish by substantial evidence, excluding every other hypothesis than that of guilt, the essential elements of the crime charged. * * * An essential element is that the defendant must have acted with a criminal intent — he must have believed that what he swore to was false and he must have had the intent to deceive. If there was a lack of consciousness of the nature of the statement made or it was inadvertently made or there was a mistake of the import, there was no corrupt motive. * * * Assuming that the defendant made a false statement when he stated that he ‘got cash for this check’, it is settled that a false statement which is the result of an honest mistake is not perjury. People are prone to use colloquial terms in describing events and in doing so err in failing to adhere to technical terms but such error is insufficient to establish perjury. At most the defendant’s statement was equivocal. In this essential regard the evidence falls far short of the well-settled requirement that the elements of the crime of perjury must be proved by clear and convincing testimony to a moral certainty and beyond all reasonable doubt. Evidence which is merely probable is not enough.” While ordinarily knowledge and intent are matters to be passed upon by the jury, a prosecution must fail if the Government does not produce sufficient testimony to warrant, under the strict rules of proof applying in such cases, the jury in finding the presence of these necessary ingredients of the crime of perjury. We hold, therefore, that the Court below should have directed the jury to acquit appellant, and its judgment is reversed and the cause remanded for the entry of such a judgment. Reversed. . “Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any Written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of ' perjury, * * . Harrell v. United States, 5 Cir., 1955, 220 F.2d 516, and Blackmon v. United States, 5 Cir., 1940, 108 F.2d 572. . Cf. 70 U.S.J. See. 17(5) and succeeding sections. . Ib. and United States v. Norris, 1937, 300 U.S. 564, 576, 57 S.Ct. 535, 81 L.Ed. 808. . United States v. Rose, 3 Cir., 1954, 215 F.2d 617, 622, 623. . The same Court reached a like result and used similar language in United States v. Neff, 3 Cir., 1954, 212 F.2d 297, 306-307. This case, as well as the Rose case supra, cited as authority our case of McWhorter v. United States, 5 Cir., 1952, 193 F.2d 982. Both of these cases cite a wealth of authority tending to sustain the principles quoted from the Rose case. Fotie v. United States, 8 Cir., 1943, 137 F.2d 831, 841-842, involved an answer based upon a question which the witness had apparently not fully understood. Because of this and the fact that the trial Court dealt with the question and answer out of context caused the Court to reverse a conviction entered by a District Judge sitting without jury. Smith v. United States, 6 Cir., 1948, 169 F.2d 118, citing Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, Fraser v. United States, 6 Cir., 1944, 145 F.2d 145, certiorari denied 324 U.S. 842, 65 S.Ct. 586, 89 L.Ed. 1403, and other cases, is authority for the rule that, in perjury prosecutions, a preliminary question is presented to the Court whether the evidence upon which the prosecution is based is of sufficient quantity and quality to warrant submission to the jury, having in mind that, “To sustain a conviction, it must be shown by clear, convincing and direct evidence to a moral certainty and beyond a reasonable doubt that the defendant committed willful and corrupt perjury.” [169 F.2d 121.] And see also Spaeth v. United States, 6 Cir., 1955, 218 F.2d 361. Question: Are there two issues in the case? A. no B. yes Answer:
songer_state	25	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". Basil W. SMITH, Jr., Plaintiff-Appellant Cross-Appellee, v. SNAP-ON TOOLS CORPORATION, Defendant-Appellee Cross-Appellant. No. 86-4943. United States Court of Appeals, Fifth Circuit. Dec. 11, 1987. Rehearing Denied Jan. 12, 1988. Orma R. Smith, Jr., Smith, Ross & Trapp, Corinth, Miss., for Smith. L.F. Sams, Jr., W. Scott Collins, Mitchell, McNutt, Bush, LaGrone & Sams, Tupelo, Miss., for Snap-On Tools Corp. Before CLARK, Chief Judge, GEE, and RUBIN, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: Basil Smith, a resident of Mississippi, made a ratchet by combining parts of two existing tools. Hoping to see his ratchet made available for sale, he brought it to the attention of Snap-On Tools, Inc., a corporation with its principal place of business in Wisconsin, by showing the ratchet to an independent dealer, then submitting a tool suggestion form to corporate headquarters. Snap-On began manufacturing and selling the ratchet without paying any part of the proceeds to Smith. Smith brought a diversity action against Snap-On, claiming that the ratchet was a trade secret, that he submitted the ratchet in confidence to Snap-On, that Snap-On misappropriated the trade secret, and that Snap-On was liable in damages to him for the misappropriation. The district court, applying Wisconsin law, held that Snap-On had misappropriated Smith’s trade secret and awarded Smith damages in the amount of two and one-half percent of Snap-On’s gross sales from the ratchet plus pre-judgment interest. Smith appealed the damage award, seeking to recover Snap-On’s profits rather than a reasonable royalty. Snap-On cross-appealed, contending that the district court erred 1) in holding that the device was a trade secret; 2) in holding that a confidential relationship existed between Smith and Snap-On; 3) in holding that Smith’s claim was not barred by laches or the statute of limitations; 4) in awarding pre-judgment interest; 5) in awarding a reasonable royalty measure of damages for as long as Snap-On manufactured and marketed the tool rather than merely for the period during which Snap-On enjoyed a competitive advantage because it was able to produce the tool before its competitors could duplicate the model they saw on the market. Because the record does not support the finding that there was a confidential relationship between Smith and Snap-On, we reverse. Wisconsin law prescribes two essential elements in a cause of action for misappropriation of trade secrets: an actual trade secret and a breach of confidence. The essence of the tort of trade secret misappropriation is the inequitable use of the secret. Even when a trade secret exists, a person who learns the secret legitimately, without any duty of confidentiality, is free to use it. Wisconsin therefore follows trade secrets law as set out in § 757 of the Restatement of Torts. Under the Restatement, “[o]ne who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if ... his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.” As the comment to this provision states, the proprietor of a trade secret may not unilaterally create a confidential relationship without the knowledge or consent of the party to whom he discloses the secret. No particular form of notice is necessary, however; the question is whether the recipient of the information knew or should have known that the disclosure was made in confidence. Smith concedes that he never explicitly requested that his disclosure to Snap-On be held in confidence. Nonetheless, he argues, Snap-On knew or should have known that the disclosure was confidential. According to Smith, a “special relationship” existed between himself and Snap-On, based on the fact that he, as a relatively unsophisticated individual, submitted his invention to Snap-On, a large corporation. Under the circumstances, Smith contends, the manufacturer should have known that he, as the inventor, expected compensation even if he did not request it. The district court accepted this argument, and found that Snap-On had clothed its independent dealer, Jackie Clark, to whom the disclosure was actually made, with apparent authority to accept tool submission suggestions from people like Smith. Pointing out the discrepancy in the circumstances of Smith, a mechanic with little education, and Snap-On, a large corporation, the court concluded that a special relationship between Smith and Snap-On existed from the time of the initial disclosure to Clark and that Snap-On knew or should have known that an inventor does not submit his invention to a manufacturer to appropriate without compensating the inventor. This does not reflect Wisconsin law. The Supreme Court of Wisconsin has held that, when parties are dealing at arm’s length, one party’s disclosure of an alleged trade secret to another does not automatically create a confidential relationship. Although the case in which the Supreme Court of Wisconsin announced this holding involved two corporations, we see no reason to believe that it would have applied a different rule if the inventor had been an individual rather than a corporation. Under certain circumstances, courts have found liability for misappropriation of trade secrets in cases involving implied confidentiality between an inventor and a manufacturer. When a manufacturer has actively solicited disclosure from an inventor, then made use of the disclosed material, the manufacturer may be liable for use or disclosure of the secret in the absence of any expressed understanding as to confidentiality. In this case, however, Smith disclosed the invention on his own initiative, without any prompting from Snap-On. Alternatively, courts have imposed liability when the disclosing inventor did not specifically request confidentiality from the manufacturer, but did make clear that the disclosure was intended as part of a course of negotiations aimed at creating a licensing agreement or entering into a similar business transaction. These cases are also distinguishable because Smith did not indicate that he wanted any pecuniary recompense for his suggestion. In fact, Smith testified that he did not mention compensation to Jackie Clark because he did not believe Clark was authorized to discuss such matters. When Smith sent Snap-On a tool suggestion report describing the ratchet shortly after the initial disclosure to Clark, he did not in any way indicate that he wanted compensation, and indeed wrote on the suggestion form, “I would like to be able to buy a nice new shiney [sic] one from the Snap-On truck.” In none of his dealings with Snap-On over the next two years did Smith ever request confidentiality or indicate that he expected or desired any commercial arrangement based on his submission of the ratchet suggestion to Snap-On. In February, 1978, more than two years after Smith showed the ratchet to Clark, Smith’s lawyer sent a letter to the supervisor of Snap-On’s Product Management Division in which he asked that Smith receive compensation. Reliance on confidentiality, however, must exist at the time the disclosure is made. An attempt to establish a special relationship long after an initial disclosure comes too late. Because there was no confidential relationship between Smith and Snap-On, Snap-On violated no obligation to Smith by manufacturing the ratchet. We therefore REVERSE. . Corroon & Black-Rutters & Roberts, Inc. v. Hosch, 109 Wis.2d 290, 325 N.W.2d 883, 886 (1982); Abbott Laboratories v. Norse Chemical Corp., 33 Wis.2d 445, 147 N.W.2d 529, 533-34 (1967). . RTE Corp. v. Coatings, Inc., 84 Wis.2d 105, 267 N.W.2d 226, 231 (1978). . Id. . Id.; Abbott Laboratories, 33 Wis.2d 445, 147 N.W.2d at 533-35. . Restatement of Torts § 757(b) (1939). . Id. comment j. . RTE, 84 Wis.2d 105, 267 N.W.2d at 232; Restatement of Torts § 757(b) comment j (1939). . RTE, 84 Wis.2d 105, 267 N.W.2d at 232. . Id., 267 N.W.2d at 228. . Smith v. Dravo Corp., 203 F.2d 369, 372, 376 (7th Cir.1953). . Id.; Schreyer v. Casco Prods. Corp., 190 F.2d 921, 924 (2d Cir.1951), cert. denied, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952); Hoeltke v. C.M. Kemp Mfg. Co., 80 F.2d 912, 922-23 (4th Cir.1935), cert. denied, 298 U.S. 673, 56 S.Ct. 938, 80 L.Ed. 1395 (1936). . RTE, 84 Wis.2d 105, 267 N.W.2d at 233. 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_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. John Calvin JOHNSON, Appellant, v. Walter M. RIDDLE, Appellee. No. 76-2035. United States Court of Appeals, Fourth Circuit. Argued Feb. 18, 1977. Decided Sept. 16, 1977. Randall M. Chastain, Columbia, S.C. (G. Anthony Campbell, U.S.C. Law Center, Columbia, S.C., on brief), for appellant. Jim L. Chin, Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Va., Richmond, Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges. Circuit Judge Craven participated in the decision of this case but died before the opinion was prepared. WIDENER, Circuit Judge: In this federal habeas corpus proceeding, petitioner John Calvin Johnson challenges the validity of a 1957 armed robbery conviction upon which a current three-year recidivist sentence is partially based. The district court denied relief, and we affirm. Johnson directs four assignments of error at his 1957 conviction: (1) The systematic exclusion of black people from the grand jury that indicted him; (2) denial of his right of appeal; (3) ineffective assistance of counsel at the appellate stage of the proceedings; and (4) the use of an impermissibly suggestive identification procedure consisting of a pre-trial showup. I Grand Jury Selection Petitioner is precluded from raising the issue of the exclusion of black people from the grand jury that indicted him in 1957. Under State law, such an issue must be raised at a preliminary stage of the original State court proceeding, prior to the time a plea is entered on the merits, or else the objection is waived. Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368 (1952). Petitioner having raised this issue for the first time 17 years after his trial and conviction, his objection was waived under State law, and cannot, under the facts before us, be asserted now in a federal habeas corpus proceeding. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Neither cause for the failure to raise the point at the time nor actual prejudice has been shown here. Francis, p. 542, 96 S.Ct. 1708. II Right to Appeal and Ineffective Assistance of Counsel Although petitioner’s brief phrases this aspect of the case in terms of denial of a right to appeal and ineffective assistance of counsel, both of these claims share the same factual basis, that petitioner told his appointed counsel that he wished to appeal his 1957 conviction but that counsel failed to follow through on the request. Petitioner chose to raise these claims for the first time seventeen years after his trial and conviction, although nothing prevented him from doing so at a time when the State might have had a chance of reconstructing the record and surrounding events in an effort to explain why an appeal was never filed. We agree with the district court that petitioner’s contention is raised too late to avail him. See Lunnermon v. Peyton, 310 F.Supp. 323 (W.D.Va.1970), aff’d per curiam in 440 F.2d 774 (4th Cir. 1971). While in other contexts substantial delays in seeking habeas corpus relief have not precluded consideration of the points raised, see, e.g., Garland v. Cox, 472 F.2d 875 (4th Cir. 1973); Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), in neither case cited was there so great, and so unjustified, a potential for prejudice to the Commonwealth. In Garland, for example, it was undisputed that petitioner’s counsel had first been appointed the day of the trial, raising a strong presumption of ineffective assistance. And in Hairston, a case arising prior to Francis v. Henderson, supra, there was ample opportunity to gather evidence pertaining to the long standing practice of unconstitutionally excluding black people from grand jury service. In the present case, in contrast, we have only petitioner’s allegation that he requested an appeal, and that counsel failed to perfect one. Based on this allegation, easily made after 17 years of silence but obviously difficult to disprove, petitioner would have us remand for an evidentiary hearing, where, presumably, the State should be required to rebut what, on its face, is a claim that might entitle petitioner to the relief he seeks. If the State were shown to have a reasonable opportunity to make the kind of factual reconstruction necessary to such a task, that might be another case, but nothing in the record suggests the opportunity exists after a lapse of 17 years. In arriving at our decision, we also give weight to the fact that petitioner makes no effort to explain or to justify the delay. Indeed, he did not even challenge the conviction now before us at the recidivist proceeding itself in 1971, where, generally, the only defense is the invalidity of a previous conviction. Smith v. Superintendent, 214 Ya. 359, 200 S.E.2d 523 (1973). This failure is given added significance in this case because, in response to the State’s contention that he still has available a State habeas corpus remedy by asserting the ineffective assistance of counsel at the 1971 recidivist proceeding, the petitioner here denies that he was ineffectively represented in the recidivist proceeding in 1971, thus admitting effective representation in the very proceeding from which came the sentence he is attacking. Because his admittedly effective counsel did not assert the invalidity of the 1957 conviction, we may only assume that in 1971 the petitioner did not have reason to believe his 1957 conviction was invalid because of any denied right to appeal, and, in the context we find the omission here, it must weigh heavily against the petitioner’s position. It would be strange indeed that an admittedly effective attorney did not assert a good defense, and no explanation for this omission is offered by petitioner. His argument, in explanation, that at that time (1971) he might have proceeded to review this matter either by habeas corpus or by appeal, see Smith, 200 S.E.2d at 524, is belied by the fact that he did not file his State petition for habeas corpus until 1974, some three years after the conviction. And this although he was admittedly represented by a competent attorney. We also note that petitioner is now on parole, thus negating any potential practical disability which might be attached to confinement. We do not downgrade the difficulties these allegations present. But we also cannot ignore the fact that they were largely engendered by the petitioner himself in waiting so long to raise his claims, in circumstances where a detailed factual reconstruction necessary to test the validity of those claims would be most difficult, if not possible. In these circumstances, we hold that petitioner’s objections must be deemed waived. Ill The Show-Up Petitioner claims that a pre-trial identification procedure, at which he was identified as the perpetrator of the robbery, was so unduly suggestive as to create a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The facts cited in support of this claim were that petitioner was shown singly to the victim of the crime, rather than as part of a line-up, and that several police officers were present as well. To be sure, the show-up may not be a favored procedure. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But it is equally clear that the use of such a procedure does not necessarily violate due process; such a determination can only be made by reference to the totality of circumstances. Stovall, supra, at 302, 87 S.Ct. 1967. The general allegation advanced by petitioner that the show-up was impermissibly suggestive derives factual support only from the mere fact of the use of the show-up itself. No supporting facts relating to the totality of circumstances are brought to our attention. Surely the fact that police officers were present is insufficient, when the identification occurred in a police station and petitioner was being held on an unrelated charge. We therefore hold that petitioner’s general, unsupported allegations are insufficient to make out a prima facie case of unconstitutional identification. The judgment of the district court denying the writ of habeas corpus is AFFIRMED. . The Virginia recidivist statute is Va.Code Ann. § 53-296. Petitioner has been discharged from his 1957 conviction, and is presently serving sentences for a 1970 conviction for possession and sale of narcotics, and a 1971 conviction for possession of a controlled drug. Although the recidivist statute requires a total of only two convictions to be applicable, we consider the validity of the 1957 conviction to be in issue since it was included in the recidivist information, and could have played a part in the sentence imposed for recidivism. The petitioner is presently on parole. . The Twenty-Fourth Annual Report of the Virginia State Bar For the Year Ending June 30, 1962 shows that Philip Whitfield, the attorney in the 1957 conviction, died during that fiscal year. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
sc_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. SIMS v. UNITED STATES. No. 88. Argued February 26, 1959. Decided March 23, 1959. Fred H. Capian, Assistant Attorney General of West Virginia, argued the cause for petitioner. With him on the brief was W. W. Barron, Attorney General of West Virginia. Melva M. Graney argued the cause for the United States. With her on the brief were Solicitor General Rankin, Assistant Attorney General Rice and Joseph Kovner. Mr. Justice Whittaker delivered the opinion of the Court. The Commissioner of Internal Revenue assessed an income tax deficiency against each of three residents of West Virginia and forwarded the assessment lists to the Director of Internal Revenue at Parkersburg for collection. The deficiencies remaining unpaid for more than 10 days- after demand for payment and the taxpayers being then employed by the State of West Virginia, the Director issued notices of levy directed to the State of West Virginia and served them on petitioner, as the State Auditor, seizing the accrued salaries of the taxpayers pursuant to § 6331 of the 1954 Internal Revenue Code, 26 U. S. C. (Supp. V) § 6331. Petitioner refused to honor the levies and instead issued and delivered payroll warrants to the taxpayers for their then accrued net salaries aggregating $519.71. Thereafter the .Government brought this suit in the Federal District Court against petitioner under § 6332 of the 1954 Internal Revenue Code, 26 U. S. C. (Supp. V) § 6332, to recover from him personally the $519.71 that he had so paid to the taxpayers in disobedience to and defeat of the Government’s levies. The District Court rendered judgment for the Government and the Court of Appeals affirmed, 252 F. 2d 434. Certiorari was sought on the grounds that § 6331 does not authorize a levy on the accrued salaries of employees of a State, and that, if it be held that it does, petitioner was not a person “obligated with respect to” the accrued and seized salaries, within the meaning of § 6332, and, therefore, is not personally liable for refusing to surrender them to the Government.' We granted the writ to determine those questions. 358 U. S. 809. Nothing in the Constitution requires that the salaries of state employees be treated any differently, for federal tax purposes, than the salaries of others, Helvering v. Gerhardt, 304 U. S. 405; Graves v. New York ex rel. O’Keefe, 306 U. S. 466, and it is quite clear, generally, that accrued salaries are property and rights to prop-' erty subject to levy. In plain terms, § 6331 proyides for the collection of assessed and unpaid taxes “by levy upon all property and rights to property” belonging to a delinquent taxpayer. Pursuant to that statute a regulation was promulgated expressly interpreting and declaring § 6331 to authorize levy on the accrued salaries of employees of a State to enforce collection of any federal tax. Although not disputing these principles, petitioner advances two arguments in support of his claim' that the statutes do not authorize a levy on the accrued salaries of employees of a State. First, he contends that a State is not a “person” within the meaning of § 6332, and, second,. he argues that Congress, by specifically authorizing in § 6331 a levy “upon the accrued salary or wages of any officer, employee, or elected 'Official, of the United States, 'the District of Columbia, or any agency or instrumentality” thereof, but not similarly specifically authorizing levy upon the accrued salaries or wages of employees of a State, evinced its intention to exclude the latter from such levies. Though the definition of “person” in § 6332 does not mention States or any sovereign or political entity or their officers among those it “includes” (Note 3), it is equally clear that it does not exclude them. This is made certain by the provisions of § 7701 (b) of the 1954 Internal Revenue Code that “The terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise .within the meaning of the term defined.” 26 U. S. C. (Supp. V) § 7701 (b). Whether the term “person” when used in a federal statute includes a State cannot be abstractly declared, but depends upon its legislative ewironment, Ohio v. Helvering, 292 U. S. 360, 370; Georgia v. Evans, 316 U. S. 159, 161. It is clear that § 6332 is stated in all-inclusive terms of general application. “In interpreting federal revenue measures expressed in terms of general application, this Court has ordinarily found them operative in the case of state activities even though States were not expressly indicated as subjects of tax.” Wilmette Park Dist. v. Campbell, 338 U. S. 411, 416, and cases cited. We think that the subject matter, the context, the legislative history, and the executive interpretation, i. e., the legislative environment, of § 6332 make it plain that Congress intended to and did include States within the.term “person” as used'in § 6332. Nor is there merit in petitioner’s contention that Congress, by specifically providing in § 6331 for levy upon the accrued salaries of federal employees, but not mentioning state employees, evinced an intention to exclude the latter from levy. The explanation of that action by Congress appears quite clearly to be that this Court had held in Smith v. Jackson, 246 U. S. 388, that a federal disbursing officer might not, in the absence of express congressional authorization, set off an indebtedness of a federal employee to tbe Government against the employee’s salary, and, pursuant to that opinion, the Comptroller General ruled that an “administrative official served with [notices of levy] would be without authority to withhold any portion of the current salary of such employee in satisfaction of the notices of levy and distraint.” 26 Comp. Gen. 907, 912 (1947). It is evident that § 6331 was enacted to overcome that difficulty and to subject the salaries of federal employees to the same collection procedures as are available against all other taxpayers, including employees of a State. Accordingly we hold that §§ 6331 and 6332 authorize levy upon the accrued salaries of state employees for the collection of any federal tax. • : This brings us to petitioner’s contention that even if the salaries of state employees are subject to levy, he is not personally liable to the Government for refusing to honor its levies because, contrary to the holding of the courts below, he was not a person “obligated with respect to” the salaries covered thereby. Congress did not define the questioned phrase, nor do we feel called upon here to delimit its scope, for we think it includes, at least, a person who has the sole power to control disposition of the fund, and we also think that, under the West Virginia law, petitioner both had and exercised that power. By a West Virginia statute, 1 W. Va. Code, 1955, § 1031 (1)-, he was empowered and obligated to deduct and withhold from the salaries of state employees sums “to pay taxes as may be required by an act or acts of the congress of the United States of America”; and, similarly, another West Virginia statute, 2 W. Va. Code, 1955, §3834.(18), authorizes garnishments to be served upon him to sequester the salaries of state employees. He alone has the obligation and power to issue warrants for the payment of salaries,. and state employees entitled to payment for services may enforce their rights by mandamus against him. State ex rel. Board of Governors of West Virginia University v. Sims, 133 W. Va. 239, 55 S. E. 2d 505; State ex rel. Board of Governors of West Virginia University v. Sims, 136 W. Va. 789, 68 S. E. 2d 489; State ex rel. Board of Governors of West Virginia University v. Sims, 140 W. Va. 64, 82 S. E. 2d 321. By and to the extent of these West Virginia laws petitioner was obligated and empowered in respect to the sequestered salaries. These laws empowered him completely to control the disposition of that fund. He exercised that power by refusing to honor the Government’s valid levies, and to surrender the fund to the Government. Instead he surrendered the fund to the taxpayers. That action by petitioner resulted in defeat of the Government’s valid levies. Upon these principles four judges who are constantly required to pass upon West Virginia laws have held that, under the law of that State, petitioner is a person who was obligated with respect to the salaries covered by the Government’s levies. Their conclusion appears to be founded on reason and authority, and under familiar principles will be accepted here. Propper v. Clark, 337 U. S. 472, 486-487. Being a person who, under the law of West Virginia, was obligated with respect to the salaries covered by the Government’s levies, petitioner is, by § 6332 (b), made personally liable to the Government in a sum equal to the amount, not exceeding the delinquent taxes, which he refused to surrender to the Government but surrendered instead to the taxpayers in defeat of the Government’s levies. The judgment of the Court of Appeals was therefore correct and must be Affirmed. 26 U. S. C. (Supp. V) § 6331, in pertinent part) provides: “(a) Authority of secretary or delegate. — If any. person liable to pay any tax neglects or refuses to pay' the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax ... by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer .... “(b) Seizure and sale of property. — The term ‘levy’ as used in this title includes the power of distraint and seizure by any means. In any case in .which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).” The assessment against each of the taxpayers substantially exceeded in amount the accrued salary owing to each at the time of the levies. 26 U. S. C. (Supp. V) §6332 provides: “(a) Requirement. — Any person-in possession of (or obligated with respect to)- property or rights to property subject to levy -upon -which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such p^rt of the property or'rights as is, at the time of such demand, subject to an attachment1 or execution under any judicial process. “(b)- Penalty for violation. — Any person who fails or refuses to surrender as required by subsection (a) any property or rights to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and.estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes for the collection of which such levy has been made, together with costs and interest on such sum at the rate of 6 percent per annum from the date of such levy. “(c) Person defined. — The term ‘person,’ as used in subsection (a), includes an officer or employee of. a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.” Glass City Bank v. United States, 326 U. S. 265, 268; United States v. Long Island Drug Co., 115 F. 2d 983, 986 (C. A. 2d Cir.); 9 Mertens, Law of Federal Income Taxation (Rev.), §49.205. The only property exempt from levy is that listed in § 6334 (a) of the 1954 Internal Revenue Code, 26 U. S. C. (Supp. V) § 6334 (a), consisting of certain personal articles, and provisions. It does not exempt salaries or wages. Section 301.6331-1 (a) (4) (ii) of Treasury Regulations relating to Seizure of Property for Collection of Taxes (1954), 26 CFR (revised as of January 1, 1958) §301.6331-1 (a)(4)(h), in pertinent part, provides: “State and municipal employees. Accrued salaries, wages, or other compensation of any officer, employee, or elected or appointed official of a State or Territory, or of any agency, instrumentality, or political subdivision thereof, are also subject to levy to enforce collection of any Federal tax.” This Regulation became effective on January 1, 1955, 1955-1 Cum. Bull., p. 195, § 7851, and therefore prior to the service on petitioner of the Government’s notices of levy in October 1955. 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:
sc_casedisposition	D	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. MARINE COOKS & STEWARDS, AFL, et al. v. PANAMA STEAMSHIP CO., LTD., et al. No. 403. Argued March 2-3, 1960. Decided April 18, 1960. John Paul Jennings argued the cause for petitioners. With him on the brief was J. Duane Vance. John D. Mosser argued the cause for respondents. With him on the brief was Charles B. Howard. Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade and Herbert E. Morris filed a brief for the United States, as amicus curiae. Mr. Justice Black delivered the opinion of the Court. The respondents, who are the owner, time charterer, and master of the Liberian registered vessel, S. S. Nikolos, brought this action in a United States District Court against the petitioner union and its members praying for temporary and permanent injunctions to restrain, and for damages allegedly suffered from, the union’s peaceful picketing of the ship in American waters and its threats to picket shore consignees of the ship’s cargo should they accept delivery. The union’s sole contention was that the District Court was without jurisdiction to restrain the picketing because of the Norris-LaGuardia Act which states in § 1: “That no court of the United States, as herein defined, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this Act; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this Act.” Section 4 of that same law specifically denies jurisdiction to District Courts to issue any restraining order or temporary or permanent injunction to prohibit unions from: “(e)' Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence . ...” Notwithstanding these provisions of the Norris-La-Guardia Act and despite an express finding that the union and its members had not been guilty of fraud, and had not threatened or committed any acts of physical violence to any person or any property, the District Court issued a temporary injunction to restrain the picketing. The injunction prohibited picketing by the petitioner union of “the SS ‘Nikolos’ or any other vessel registered under a foreign flag and manned by an alien crew and owned, operated or chartered by” respondents, in the Puget Sound area. This action of the court was based on its conclusions that (a) the case did not involve or grow out of any labor dispute within the meaning of the Norris-LaGuardia Act and (b) even if there were a labor dispute within the meaning of that Act, the court had jurisdiction to restrain the picketing because it interfered in the internal economy of a vessel registered under the flag of a friendly foreign power and amounted to an “unlawful interference with foreign commerce.” The court’s conclusion rested on the following facts, about which there was no substantial dispute. The petitioner and other national labor organizations act as bargaining representatives for most of the unlicensed personnel of vessels that fly the American flag on the Pacific Coast. Petitioner alone, pursuant to National Labor Relations Board certification, represents employees of the stewards’ department on a large majority of those vessels. The S. S. Nikolos is owned by a Liberian corporation, was time-chartered for this trip by another Liberian corporation, and all members of its crew were aliens working under employment contracts made outside this country. There was no labor dispute between the ship’s employees and the ship. The Nikolos picked up a cargo of salt in Mexico and carried it to the harbor of the port of Tacoma, Washington, for delivery to an American consignee there. After the ship entered the Tacoma harbor it was met by the union’s boat which began to circle around the Nikolos displaying signs marked “PICKET BOAT.” Later an additional sign was put on the boat reading: “AFL-CIO seamen protest loss of their livelihood to foreign flagships with substandard wages or substandard conditions.” The union threatened to extend its picketing to the consignee of the salt should an attempt be made to berth and unload that cargo. Although the picketing was peaceful and there was no fraud, the result was that the ship could not deliver its cargo. On appeal from the temporary injunction to the Court of Appeals the petitioner argued that the injunction granted by the District Court was beyond the jurisdiction of that court because of the provisions of § 4 of the Norris-LaGuardia Act previously set out, but the Court of Appeals rejected that contention and upheld the injunction. That court's view was based almost entirely upon our holding in Benz v. Compania Naviera Hidalgo, 353 U. S. 138. Certiorari was granted to consider the question of the applicability of the Norris-LaGuardia Act here, 361 U. S. 893, and in Order of Railroad Telegraphers v. Chicago & North Western R. Co., 361 U. S. 809, decided this day, ante, p. 330. We think neither the holding nor the opinion in the Benz case supports the narrow construction the Court of Appeals gave the Norris-LaGuardia Act in this case. The Benz case was decided by a United States District Court sitting as a state court to enforce state law under its diversity jurisdiction. The question in the Benz case was whether the Labor Management Relations Act of 1947 governed the internal labor relations of a foreign ship and its foreign workers under contracts made abroad while that ship happened temporarily to be in American waters. The Benz case decided that the Labor Management Relations Act had no such scope or coverage and that it accordingly did not pre-empt the labor relations field so as to bar an action for damages for unlawful picketing under Oregon law. Nothing was said or intimated in Benz that would justify an inference that because a United States District Court has power to award damages in state cases growing out of labor disputes it also has power to issue injunctions in like situations. That question — of United States courts' jurisdiction to issue injunctions in cases like this — is to be controlled by the Norris-LaGuardia Act. That Act’s language is broad. The language is broad because Congress was intent upon taking the federal courts out of the labor injunction business except in the very limited circumstances left open for federal jurisdiction under the Norris-LaGuardia Act. The history and background that led Congress to take this view have been adverted to in a number of prior opinions of this Court in which we refused to give the Act narrow interpretations that would have restored many labor dispute controversies to the courts. It.is difficult to see how this controversy could be thought to spring from anything except one “concerning terms or conditions of employment,” and hence a labor dispute within the meaning of the Norris-LaGuardia Act. The protest stated by the pickets concerned “substandard wages or substandard conditions.” The controversy does involve, as the Act requires, “persons who are engaged in the same industry, trade, craft, or occupation.” And it is immaterial under the Act that the unions and the ship and the consignees did not “stand in the proximate relation of employer and employee.” This case clearly does grow out of a labor dispute within the meaning of the Norris-LaGuardia Act. The District Court held, however, that even if this case involved a labor dispute under the Norris-LaGuardia Act the court had jurisdiction to issue the injunction because the picketing was an “unlawful interference with foreign commerce” and interfered “in the internal economy of a vessel registered under the flag of a friendly foreign power” and prevented “such a vessel from lawfully loading or discharging cargo at ports of the United States.” The Court of Appeals adopted this position, but cited no authority for its statement that the picketing was “unlawful,” nor have the respondents in this Court pointed to any statute or persuasive authority proving that petitioner’s conduct was unlawful. Compare § 20 of the Clayton Act, 29 U. S. C. § 52. And even if unlawful, it would not follow that the federal court would have jurisdiction to enjoin the particular conduct which § 4 of the Norris-LaGuardia Act declared shall not be enjoined. Nor does the language of the Norris-LaGuardia Act leave room to hold that jurisdiction it denies a District Court to issue a particular type of restraining order can be restored to it by a finding that the nonenjoinable conduct may “interfere in the internal economy of a vessel registered under the flag of a friendly foreign power.” Congress passed the Norris-LaGuardia Act to curtail and regulate the jurisdiction of courts, not, as it passed the Taft-Hartley Act, to regulate the conduct of people engaged in labor disputes. As we pointed out in the Benz case, a ship that voluntarily enters the territorial limits of this country subjects itself to our laws and jurisdiction as they exist. The fact that a foreign ship enters a United States, court as a plaintiff cannot enlarge the jurisdiction of that court. There is not presented to us here, and we do not decide, whether the picketing of petitioner was tortious under state or federal law. All we decide is that the Norris-LaGuardia Act deprives the United States court of jurisdiction to issue the injunction it did under the circumstances shown. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court with directions to dismiss the petition for injunction. It is so ordered. 47 Stat. 70, 29 U. S. C. §101. 47 Stat. 70, 71; 29 U. S. C. § 104. Even in "the limited jurisdiction the Norris-LaGuardia Act leaves to federal courts in labor controversies, other sections of the Act narrowly circumscribe the cases where, the parties against whom, and the circumstances in which, injunctions may issue. If, however, issuance of a specific injunction is prohibited by one section, such as § 4, compliance with the requirements of another section, such as § 7, does not justify the injunction. Panama Steamship Co. v. Marine Cooks & Stewards, AFL, 1959 Am. Mar. Cas. 340. 1959 Am. Mar. Cas. 340, 350. In the District Court respondents rested their claim for jurisdiction on 28 U. S. C. § 1331 which provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy . . . arises under the Constitution, laws or treaties of the United States.” Between the time the District Court’s injunction was appealed and the time the Court of Appeals decided the appeal, this Court decided Romero v. International Term. Over. Co., 358 U. S. 354. That case decided that § 1331 does “not extend, and could not reasonably be interpreted to extend, to cases of admiralty and maritime jurisdiction.” Id., at 378. In the Court of Appeals the petitioner here broadened its challenge to the jurisdiction of the District Court in this case by invoking the interpretation of § 1331 declared in the Romero case. The view we take of the challenge to the court’s jurisdiction under the Norris-LaGuardia Act makes it unnecessary for us to determine the entirely separate question raised under the Romero case. Marine Cooks & Stewards, AFL, v. Panama Steamship Co., 265 F. 2d 780 (C. A. 9th Cir. 1959). See, e. g., United States v. Hutcheson, 312 U. S. 219; Milk Wagon Drivers’ Union v. Lake Valley Farm Products, 311 U. S. 91; New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552; Lauf v. Shinner & Co., 303 U. S. 323. And see Allen Bradley Co. v. Local Union No. 3, I. B. E. W., 325 U. S. 797, 805. “The underlying aim of the Norris-LaGuardia Act was to restore the broad purpose which Congress thought it had formulated in the Clayton Act but which was frustrated, so Congress believed, by unduly restrictive judicial construction.” United States v. Hutcheson, 312 U. S. 219, 235-236. This congressional purpose, as is well known, was prompted by a desire to protect the rights of laboring men to organize and bargain collectively and to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer. See Frankfurter and Greene, The Labor Injunction (1930), at 200; Gregory, Labor and the Law (1958), at 184-199. Section 13 of the Norris-LaGuardia Act, 29 U. S. C. § 113 (c), defines a labor dispute, for purposes of that Act, as follows: “The term 'labor dispute' includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” (Emphasis supplied.) 47 Stat. 70, 73 ; 29 U. S. C. § 113 (a). See note 8, supra. 1959 Am. Mar. Cas. 340, 350. Unlike the situation in the Benz ease, in which American unions to which the foreign seamen did not belong picketed the foreign ship in sympathy with the strike of the foreign seamen aboard, the union members here were not interested in the internal economy of the ship, but rather were interested in preserving job opportunities for themselves in this country. They were picketing on their own behalf, not on behalf of the foreign employees as in Benz. Though the employer here was foreign, the dispute was domestic. For a thoughtful discussion of the impact of foreign employment upon American labor standards, see Afran Transport Co. v. National Maritime Union, 169 F. Supp. 416, 1959 Am. Mar. Cas. 326 (holding that the Norris-LaGuardia Act withdrew from Federal District Courts jurisdiction to issue labor injunctions in a labor dispute strikingly like the one here involved). But see Fianza Cia. Nav. S. A. v. Benz, 1959 Am. Mar. Cas. 1758, 37 CCH Lab. Cas. ¶ 65,495. Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 142. See generally, Comment, The Effect of United States Labor Legislation on the Flag-of-Convenience Fleet: Regulation of Shipboard Labor Relations and Remedies Against Shoreside Picketing, 69 Yale L. J. 498, 516-525, esp. 523-525. Here respondents do not even claim that foreign ships seeking injunctions can obtain them without complying with the requirement of § 7 of the Norris-LaGuardia Act that the court hold a hearing and make specified findings. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Plaintiff-Appellee, v. Charles HYDE, Defendant-Appellant. No. 91-3146. United States Court of Appeals, Eleventh Circuit. Nov. 9, 1992. H. Manuel Hernandez, Longwood, Fla., for defendant-appellant. Timothy Quinlan, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee. Before TJOFLAT, Chief Judge, COX, Circuit Judge, and GODBOLD, Senior Circuit Judge. . “The term 'listed chemical’ means any listed precursor chemical or listed essential chemical.” 21 U.S.C. § 802(33) (1988). Phenylacetic acid is a "listed precursor chemical." 21 U.S.C. § 802(34)(H) (1988). TJOFLAT, Chief Judge: Appellant Charles Hyde appeals the sentence he received for violating 21 U.S.C. § 841(d)(2) (1988), which criminalizes the possession or distribution of a “listed chemical,” here phenylacetic acid, with knowledge that it would be used to manufacture a “controlled substance,” here methamphetamine. Pursuant to U.S.S.G. § 2Dl.l(a)(3) (Nov. 1, 1990), the district court scored Hyde’s base offense level at 36 by calculating the amount of methamphetamine that could have been produced from the phenylacetic acid that Hyde possessed. Through a slightly different analytic route, we reach the district court’s result. We therefore affirm Hyde’s sentence. I. The facts of this case are not in dispute. On July 20, 1990, Hyde prepaid an order for 110 pounds of phenylacetic acid at Sun Scientific Chemical Company in Dania, Florida. Two undercover agents from the Drug Enforcement Administration delivered Hyde’s order to Hyde’s sister’s business. There, Hyde took possession of the .phenylacetic acid knowing that it would be resold or used to manufacture methamphetamine. Hyde was arrested on July 26, 1990. Hyde waived indictment and was prosecuted by information filed by the United States Attorney. The information charged Hyde with violating 21 U.S.C. § 841(d)(2), by possessing and distributing phenylacetic acid with knowledge and reasonable cause to believe that the listed chemical would be used to manufacture methamphetamine, a controlled substance. On November 26, 1990, Hyde pled guilty to violating section 841(d)(2). In his guilty plea, Hyde expressly admitted that he knew the phenylacetic acid he possessed would be used to manufacture methamphetamine. At the sentencing hearing, the district court found that U.S.S.G. § 2D1.1 applied to Hyde’s violation of section 841(d)(2). Section 2D1.1(a)(3) predicates a determination of the base offense level on the amount of controlled substance involved in the crime. The court relied on the probation officer’s determination that 110 pounds of phenyla-cetic acid could yield approximately 30 kilograms of methamphetamine, and used this converted figure to arrive at a base offense level of 36 under U.S.S.G. § 2Dl.l(c)(4). Hyde objected to this base offense level, and argued that phenylacetic acid should be scored either (1) as a Schedule III substance under 21 U.S.C. § 812 (1988), with a base offense level of 20, or (2) as the equivalent of phenylacetone/P2P possessed for a purpose other than manufacturing methamphetamine under section 2Dl.l’s Drug Equivalency Tables, with a base offense level of 26. The district court rejected Hyde’s position and held that 36 was the proper base offense level. The court granted a two-level reduction for Hyde’s acceptance of responsibility, resulting in an adjusted offense level of 34. The district court sentenced Hyde to 120 months imprisonment, the maximum sentence authorized by 21 U.S.C. § 841(d), but less than the 188 to 235 months prescribed by the sentencing guidelines. II. Hyde’s appeal of the district court’s application of the sentencing guidelines to determine his base offense level for his violation of section 841(d)(2) presents a case of first impression in this circuit. We review de novo all questions of law that arise out of the district court’s application of the guidelines. United States v. Shores, 966 F.2d 1383, 1386 (11th Cir.1992). In this part of our opinion, we explain how the sentencing guidelines apply to Hyde’s crime. In part III, we consider and ultimately reject Hyde’s proffered alternative methods of computing his base offense level. A. No sentencing guideline precisely addresses violations of section 841(d)(2) under the version of the sentencing guidelines that applies to Hyde. Absent a directly applicable guideline, courts are “required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous.” U.S.S.G. § 2X5.1, comment, (backg’d) (Nov. 1, 1990); see also U.S.S.G. § 2X5.1 (“If the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline.”). The most analogous guideline contemplated by section 2X5.1 is the guideline that applies to the most analogous statute of conviction. Section 2X5.1 indicates that “the most analogous offense guideline” is determined by analogy of criminal behavior, not analogy of chemicals. The commentary provides that “the type of criminal behavior” is the proper reference for determining guideline analogies. Further, section 2X5.1 instructs that “[i]f there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control.” Section 3553(b) instructs that the sentence that is ultimately imposed should relate “to sentences prescribed by guidelines applicable to similar offenses and offenders.” (Emphasis added). Ours, then, is a quest to find the .most analogous crime. As discussed below, we find that the attempt statute, 21 U.S.C. § 846, is the most analogous statute of conviction to section 841(d)(2). Violation of section 841(d)(2) presumes that the final product, the controlled substance, has not yet been manufactured. Here, Hyde was convicted of possessing phenylacetic acid, a precursor chemical to methamphetamine, with knowledge that it would be used to manufacture methamphetamine, the final product. To violate section 841(d)(2), possession of a precursor chemical must be coupled with the knowledge that it would be manufactured into a controlled substance. Section 841(d)(2) makes an independent crime out of the elements that otherwise would comprise an attempt to manufacture methamphetamine. Section 846 provides that “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” (Emphasis added). By enacting section 846, Congress mandated that attempts be punished as severely as the underlying crime. Conviction under section 846 for attempt to manufacture methamphetamine requires proof that the defendant intended that methamphetamine be manufactured and an act or omission that amounts to a “substantial step” toward commission of the substantive crime. See United States v. Leopard, 936 F.2d 1138, 1140 (10th Cir.1991). Hyde both had the requisite intent and took a substantial step by purchasing the pheny-lacetic acid. If section 841(d)(2) did not declare that Hyde’s behavior was criminal in and of itself, then Hyde could have been convicted under section 846 of attempting to manufacture methamphetamine. We therefore look to the sentencing guideline section that governs attempts to manufacture methamphetamine under section 846 as the most analogous guideline to Hyde’s crime. The identity between the elements of section 841(d)(2) and section 846 suggests that section 2D1.4 provides the proper guideline section under which to sentence Hyde. The Sixth Circuit recognized this point in United States v. Kingston, 922 F.2d 1234 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1991). Kingston pled guilty to possession of phe-nylacetic acid with intent to manufacture and distribute methamphetamine. Just like Hyde, Kingston argued that his base offense level should not be predicated upon the amount of methamphetamine that could have been produced from the phenylacetic acid he possessed. The court rejected this argument and sentenced the defendant according to guideline section 2D 1.1. Id. at 1237. The court focused on the kinship between section 846’s criminalization of attempts and conspiracies to manufacture methamphetamine and section 841(d)(2)’s criminalization of possession of precursor chemicals with knowledge of methamphetamine’s subsequent manufacture. The purpose of the Federal effort is to control the distribution, and thus indirectly the use, of certain chemical substances. Thus, § 841(a) makes distribution and sale illegal, and § 846 tries to prevent the substances from ever being created by making the attempt to create them illegal. Section 841(d) moves this system of control even further back in time by preventing persons from even getting close to creating the substances. Section 841(d) is thus effectively an attempt statute that penalizes acts earlier in the process of manufacturing controlled substances. ... As both § 841(d) and § 846 have the same object, limiting access to controlled substances by criminalizing attempts to create them, it is sensible that they both be punished according to the same principles. Id. at 1238. The court sentenced Kingston under guideline 2D1.1, noting that section 2D1.4 utilizes the same tables to set base offense levels as does section 2D 1.1. Id. The court applied a fairness principle to reach this sentencing result. See id. (“[I]t is fair that violations of § 841(d) be punished with respect to the amount of the controlled substance that the government is seeking to limit.”). We simply recognize that the guidelines compel this result. B. Guideline section 2D1.4 is designed to punish attempts and conspiracies that violate section 846. Recognizing that the objects of attempts and conspiracies often remain unconsummated at the time of arrest, the United States Sentencing Commission instructs sentencing courts to “approximate the quantity of the controlled substance” that “reflect[s] the scale of the offense.” U.S.S.G. § 2D1.4, comment, (n. 2). Section 2D1.4 permits the conversion from phenylacetic acid to a quantity of methamphetamine for the purpose of setting a base offense level. See United States v. Beshore, 961 F.2d 1380, 1383 (8th Cir.1992) (“Calculation of amount of methamphetamine that could have been produced from the quantity of precursor chemicals is proper under the sentencing guidelines.”); United States v. Havens, 910 F.2d 703, 705 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991) (“[T]he trial court, upon proper testimony, may estimate the ultimate quantity of produceable [sic] drugs. This estimate should be equal to the amount of drugs produceable [sic] if the precursor chemicals possessed by the defendant were combined with proportionate amounts of the missing ingredients including processing equipment.”); see also U.S.S.G. § 2D1.1, comment. (n. 12) (expressly incorporating section 2D1.4’s approximation principle). The district court found that the 110 pounds of phenylacetic acid that Hyde possessed could be used to manufacture 30 kilograms of methamphetamine. Hyde does not contend, and we do not find, that this was clear error. See 18 U.S.C. § 3742(e) (1988) (courts of appeals must “accept the findings of fact of the district court unless they are clearly erroneous”). Guideline section 2X5.1 directs application of the guideline that governs the most analogous crime: Because section 846 is the most analogous statute of conviction to section 841(d)(2), guideline section 2D1.4 governs sentencing for violations of section 841(d)(2). Section 2D1.4 utilizes the same Drug Quantity Table as section 2D 1.1 for setting the base offense level. Under section 2Dl.l’s Drug Quantity Table, 30 kilograms of methamphetamine merits a base offense level of 36. The district court’s approach of sentencing Hyde directly under section 2D1.1 and our approach of following section 2X5.1 to section 2D1.4 yield the same base offense level. C. While the district court’s decision to apply section 2D1.1 directly to Hyde’s violation of section 841(d)(2) is not without support, our approach is the proper one. The district court's approach draws support from two sources. First, Appendix A’s Statutory Index includes a table that cross-references statutes of conviction with their correlative guideline sections. U.S.S.G. App. A (Nov. 1, 1990). The “index specifies the guideline section or sections ordinarily applicable to the statute of conviction.” Id. The Index cross-references section 841(d) with guideline section 2D1.1. Second, the Ninth Circuit similarly applied section 2D1.1 directly, rather than by analogy. In United States v. Cook, 938 F.2d 149, 150-51 (9th Cir.1991), Cook pled guilty to possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). The district court sentenced Cook under U.S.S.G. § 2Dl.l(c) based on the amount of methamphetamine that Cook could have produced from the ephedrine he possessed. Id. at 151. The court affirmed the decision to sentence under section 2Dl.l(c), noting that section 2D 1.1 applied not by “mere analogy but an identity of crimes and punishments.” Id. at 152. The court based its holding on section 2Dl.l’s heading; “Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses).” Id. We do not adopt the district court’s approach for three reasons. First, section 2D1.1 itself does not indicate that it applies to convictions under section 841(d). Section 2D1.1 does, however, expressly mention seven other code provisions to which it does apply. Under the doctrine of expres-sio unius est exclusio alterius, the express application of section 2D1.1 to seven other statutes of conviction strongly suggests that it does not apply to section 841(d). Second, Appendix A’s cross-reference between section 841(d) and section 2D1.1 is not binding. “This circuit’s precedent clearly permits a district court to apply a sentence guideline which reflects the defendant’s conduct” rather than the “guideline specified in the index.” United States v. Shriver, 967 F.2d 572, 574 (11th Cir.1992). Because section 2D1.1 does not by its terms apply to convictions under section 841(d), section 2X5.1 requires that sentencing focus on Hyde’s conduct. Third, the district court converted Hyde’s phenylaeetic acid into a corresponding amount of methamphetamine solely on the authority of Kingston. See Record, vol. 3, at 9-10. Yet, Kingston relied on the analogy between section 2D1.4 and section 2D1.1 to support its conversion. Neither section 2D1.1 nor section 841(d) authorizes courts to convert precursor chemicals into producible quantities of controlled substances for sentencing purposes. The district court’s conversion lacked statutory sanction. In contrast, our strict adherence to the guidelines does permit the conversion. III. Hyde contends that the district court improperly assigned him a base offense level of 36 by sentencing him under section 2D 1.1 and argues that either of two different sentencing methods would have been proper. Hyde suggests that the phenyla-cetic acid should have been scored either as a Schedule III substance under 21 U.S.C. § 812 (1988), or as the equivalent of phe-nylacetone/P2P when possessed for purposes other than the manufacture of methamphetamine under section 2Dl.l’s Drug Equivalency Tables. We disagree. A. Hyde initially argues that his crime should have been scored as if phenylaeetic acid were a Schedule III substance under section 812. Under guideline section 2Dl.l’s Drug Quantity Table, possession of more than 20 kilograms of a Schedule III substance merits a base offense level of 20. If phenylaeetic acid were a Schedule III substance, then the district court should have scored Hyde’s base offense level at 20, not 36. Hyde’s syllogism collapses on the falsity of its initial premise. Phenylaeetic acid is not a Schedule III substance. Schedule III includes “[a]ny substance (except an inject-able liquid) which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers,” 21 U.S.C. § 812(c), Schedule 111(a)(3), but Hyde does not contend, and we do not find, that phe-nylacetic acid falls within this definition. Rather, Hyde reasons that, at most, pheny-laeetic acid can be considered the equivalent of a Schedule III substance because methamphetamine is a Schedule II substance. Hyde postulates that a precursor chemical cannot be included in the same schedule as its correlative controlled substance. Hyde’s reasoning ignores the stark reality that phenylacetic acid is not listed as a Schedule III substance. Section 811 describes the rather arduous process of amending the list of substances within section 812’s schedules, which, as a general matter, remain the sole province of the Attorney General. See 21 U.S.C. § 811 (1988). Even if the addition seems sensible, courts simply lack the authority to add substances to section 812’s schedules. We decline Hyde’s invitation to do so. Because phenylacetic acid is not a Schedule III substance, the district court properly refused to sentence Hyde as if it were. B. Hyde’s second argument is that he should have been punished as if he possessed phenylacetone/P2P for a purpose other than manufacturing methamphetamine. Phenylacetic acid must be converted into phenylacetone/P2P in order to manufacture methamphetamine. Phenylace-tone/P2P is an “immediate precursor” to methamphetamine, 21 C.F.R. § 1308(g)(l)(i) (1990), while phenylacetic acid is just a “precursor” chemical, 21 U.S.C. § 802(34)(H). Hence, Hyde contends that his sentence for possession of phenylacetic acid should be no greater than a sentence for possessing an equivalent amount of phenylacetone/P2P. Under Hyde’s theory, his sentence may not exceed the sentence that would apply to a conviction for possession of 49,896 grams (110 pounds) of phe-nylacetone/P2P. While the sentencing guidelines do not endorse Hyde’s chemical analogy theory, we will demonstrate that Hyde’s crime merits a base offense level of 36 even under his theory. The Drug Equivalency Tables in the commentary to section 2D1.1 establish base offense levels by converting quantities of specified chemicals into sentencing-equivalent quantities of cocaine, heroin, PCP, or marihuana. This converted quantity is then located within section 2Dl.l’s Drug Quantity Table to determine the proper base offense level. Phenylacetone/P2P is listed twice in the Drug Equivalency Tables under the heading “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors).” The Drug Equivalency Tables convert to cocaine from phe-nylaeetone/P2P (1) “when possessed for the purpose of manufacturing methamphetamine,” and (2) “in any other case.” One gram of phenylacetone/P2P in the former category converts to 2.08 grams of cocaine, while one gram in the latter category converts to 0.375 grams of cocaine. Hyde asserts that the second conversion factor should apply. We disagree. Even if we accept Hyde’s sentencing paradigm—determining his base offense level through application of the Drug Equivalency Tables to possession of phenylace-tone/P2P—we cannot accept his choice of the applicable conversion. Hyde’s choice is simply counterfactual. In his guilty plea, Hyde expressly admitted having knowledge that the phenylacetic acid he possessed would be used to manufacture methamphetamine. The fact that phenylace-tone/P2P is chemically more proximate to methamphetamine than is phenylacetic acid does not diminish Hyde’s specific intent with regard to the ultimate manufacture of methamphetamine. Although we might be willing to indulge Hyde by substituting phenylacetone/P2P for phenylacetic acid, we will not ignore his admission that he knew that the precursor chemical was intended for the manufacture of methamphetamine. Hence, the proper conversion reference is phenylacetone/P2P when possessed for the purpose of manufacturing methamphetamine. Multiplying 49,896 grams of phe-nylacetone/P2P by the conversion factor of 2.08 yields 103,784 grams, or over 103 kilograms of cocaine. Under section 2Dl.l’s Drug Quantity Table, 103 kilograms of cocaine merits a base offense level of 36— exactly the same base offense level employed by the district court. IV. We hold that the district court properly set Hyde’s base offense level at 36. Accordingly, we affirm the decision of the district court sentencing Hyde to ten years imprisonment followed by three years of supervision, imposing a special assessment of $50, and declaring him ineligible for federal benefits for five years. AFFIRMED. . This section provides that it is illegal to "possess[ ] or distribute[ ] a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." 21 U.S.C. § 841(d)(2). . The information originally charged Hyde with possessing and distributing acetic anhydride and acetone in addition to phenylacetic acid. At arraignment, however, the parties amended the information, deleting the references to acetic anhydride and acetone. . The district court also sentenced Hyde to three years of supervision following his release from prison, imposed a special assessment of $50, and, pursuant to 21 U.S.C. § 853a(b) (1988), declared Hyde ineligible for federal benefits for five years from the date of sentencing. . See U.S.S.G. § 5Gl.l(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”). . Because Hyde was sentenced on January 28, 1991, the November 1, 1990, edition of the Guidelines Manual applies. . Hyde’s guilty plea clearly establishes that he knew that the phenylacetic acid would be used to manufacture methamphetamine. . Under the current version of the guidelines— which became effective on November 1, 1991, and does not apply to Hyde — new § 2D 1.11 is expressly designed to sentence violations of 21 U.S.C. § 841(d)(2). Under § 2D1.11, Hyde's crime would have a base offense level of 28. . Hyde contends that "[m]ethamphetamine is clearly a schedule II controlled substance." Initial Brief of Appellant at 7. For purposes of his argument, we do not disagree. . As discussed in part II.A., § 2X5.1 indicates that the most analogous sentencing guideline is determined by analogy of criminal behavior. The guidelines do not support Hyde's contention that he should have been sentenced as if he possessed phenylacetone/P2P because it is analogous to phenylacetic acid. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appel2_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". W. T. JONES AND COMPANY, Incorporated, and Noland Company, Inc., and Marvin Moseley, Appellants, v. FOODCO REALTY, INC., et al., and United States of America, Appellees. No. 8824. United States Court of Appeals Fourth Circuit. Argued Jan. 8, 1963. Decided May 21, 1963. Arthur B. Davies, III, Lynchburg, Va. (Hickson & Davies and Joseph L. Lyle, Jr., Lynchburg, Va., on brief), for appellants. Lawrence C. Musgrove, Asst. U. S. Atty. (Robert Kaplan, Preston L. Campbell and William E. Nelson, Attys., Dept, of Justice, on brief), for appellee United States. Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges. SOBELOFF, Chief Judge. When the Small Business Administration has joined a private bank in making a construction loan secured by a recorded deed of trust and the borrower becomes insolvent, is the SBA’s interest in the unpaid balance of the loan subordinate to mechanic’s liens accorded priority over deeds of trust by state law? Under the circumstances of this case we think that the mechanic’s liens are not entitled to priority over the Government’s claim. The facts are undisputed. Since these are set forth in meticulous detail in the District Court’s opinion, 206 F.Supp. 878, only those which are pertinent to this appeal will be repeated here. In August of 1959, Foodco Realty, Inc., a newly-organized corporate owner of land situated in Campbell County, Virginia, sought a construction loan of $85,-000 from the Campbell County Bank in order to finance plant and warehouse improvements. The bank was unwilling to enter into the transaction by itself and called in the Small Business Administration, an agency of the United States vested with broad power to join private lenders in making loans to small business concerns otherwise unable to obtain necessary funds for capital improvements. The SBA formally agreed to put up 90% of the loan, the maximum percentage authorized by Congress, and the bank assumed the balance. Foodco promptly executed a note which, though payable to the bank alone, on its face disclosed participation by the SBA. The note was secured by a deed of trust on Foodco’s property, which was recorded on August 13, 1959. Construction began eight days later but by the time the work was finally completed the following April, Foodco was insolvent in the sense that its debts exceeded its assets. Appellants, who had furnished labor and materials, filed proper mechanic’s liens within the sixty-day period required by Code of Va. § 43-4. On November 10, 1960, one of the appellants, W. T. Jones and Company, initiated proceedings in the Circuit Court of Campbell County to enforce its mechanic’s lien. While the suit was pending, several judgments were entered against Foodco in favor of other, non-lien creditors, all of which remain unsatisfied. Meanwhile the bank assigned to the United States its 10% fractional interest in the note secured by the deed of trust in consideration for a promise by the United States to turn over 10% of any recovery upon the note. Thereupon the United States, on its motion, was permitted to intervene as a party defendant in the state lien enforcement action and to remove it to the United States District Court for the Western District of Virginia. That court in turn referred the case to a special master. The master found that the deed of trust securing the SBA’s interest in the loan was prior in time to appellants’ mechanic’s liens and therefore entitled to priority to the extent that it encumbered Foodco’s property as it existed before the improvements were added by the mechanics. However, the master was also of the opinion that since the SBA was claiming under a Virginia deed of trust which incorporated by reference certain provisions of state law and which secured a loan to be applied exclusively to building improvements, the SBA’s claim to preference would be governed by the Virginia mechanic’s lien priority statute. By operation of this statute the SBA would take a first lien on the land but only a second lien, inferior to that of the mechanics, on the buildings. Thus the master accorded priority to the appellants to the extent of the value of the structural improvements placed by them upon the debtor’s property after recordation of the deed of trust. On objections filed by the United States, the District Court reviewed and overruled the special master’s report. The court did not question the master’s interpretation of the Virginia lien priority statute but held that “federal common law,” by which “the first in time is the first in right,” prevails over state law in matters affecting the priority of claims of the United States; therefore, the claim of the SBA having originated first in point of time, enforcement of the mechanic’s liens would be postponed, notwithstanding their preferred status under Virginia law, until the entire unpaid balance of the loan had been satisfied out of the debtor’s assets. The court also ruled in the alternative that even if “federal common law” was inapplicable, the debt owing to the United States would be in any event paramount to the mechanic’s liens by virtue of the federal insolvency statute, but that on that theory the SBA’s priority would not extend to the portion of the debt assigned to it by the participating bank. The court’s order, however, awarded the SBA full priority on the “federal common law” theory. From this order the appellant mechanics appeal. I. The FEDERAL INSOLVENCY STATUTE (31 U.S.C.A. § 191) Turning first to the federal insolvency statute, 31 U.S.C.A. § 191 (Rev.Stat. § 3466), we agree with the District Court that its provisions squarely apply to the instant case. The following language is here relevant: “Whenever any person indebted to the United States is insolvent * * * the debts due to the United States shall be first satisfied; and the priority established shall extend * * to cases in which an act of bankruptcy is committed.” The manifest purpose of the statute, in force since 1797 without significant modifications, “is simply to protect the interest of the Government in collecting money due to it” where the property of an insolvent debtor is involved. Small Business Administration v. McClellan, 364 U.S. 446, 451-452, 81 S.Ct. 191, 195-196, 5 L.Ed.2d 200 (1960). Its command is that the United States shall be accorded an absolute priority over the claims of all general lienholders, Massachusetts v. United States, 333 U.S. 611, 625-627, 68 S.Ct. 747, 92 L.Ed. 968 (1948), even though its own lien is general and notice thereof has not been properly filed and recorded. United States v. City of New Britain, 347 U.S. 81, 84-85, 74 S.Ct. 367, 98 L.Ed. 520 (1954); United States v. Gilbert Associates, Inc., 345 U.S. 361, 366, 73 S.Ct. 701, 97 L.Ed. 1071 (1953); United States v. Texas, 314 U.S. 480, 488, 62 S.Ct. 350, 86 L.Ed. 356 (1941); United States v. Emory, 314 U.S. 423, 427-429, 62 S.Ct. 317, 86 L.Ed. 315 (1941). As applied to the present facts, it would seem immaterial that the deed of trust is silent as to the SBA’s lien interest, inasmuch as beneficial ownership of nine-tenths of the debt so secured concededly accrued to the United States immediately upon execution of the note evidencing the joint loan. Cf. Small Business Administration v. McClellan, 364 U.S. 446, 450, 81 S.Ct. 191, 5 L.Ed.2d 200 (1960); United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 86 L.Ed. 315 (1941). Nor is any question raised as to the special master’s express finding that Food-co is insolvent and that its insolvency arose while construction was in progress and before the mechanic’s liens were filed. But, as appellants correctly point out, the mere inability of the debtor to pay his debts has never been regarded as sufficient to bring the United States within the protection of section 191. See United States v. Oklahoma, 261 U.S. 253, 260, 43 S.Ct. 295, 67 L.Ed. 638 (1923), and authorities cited therein. This brings us to the question whether Foodco has committed an “act of bankruptcy,” as that term is defined by section 3, sub. a of the Bankruptcy Act (11 U.S.C.A. § 21, sub. a). Reference thereto discloses that this requirement is satisfied by the debtor’s having “suffered or permitted, while insolvent, any creditor to obtain a lien upon any of his property through legal proceedings or distraint and not having vacated or discharged such lien within thirty days from the date thereof * * 11 U.S.C.A. § 21(a) (3). The record shows conclusively that, as early as November 29, 1960, and while insolvent, Foodco suffered a judgment against it in favor of one of its creditors pursuant to legal proceedings in the Circuit Court of Campbell County. This, as well as later judgments recovered by other creditors in January and May, 1961, was duly docketed and constituted a lien on its property. Code of Va. §§ 8-386, 390 (1960 amend.). See Fooshee v. Snavely, 58 F.2d 772, 773 (W.D.Va.1931). Since each of these judgment liens was allowed to stand for more than thirty days, an act of bankruptcy was committed. In re Airmont Knitting & Undergarment Co., Inc., 182 F.2d 740, 741 (2d Cir., 1950); United States v. Williams, 139 F.Supp. 94, 97-98 (M.D.N.C.1956); 1 Collier on Bankruptcy, § 3.301 et seq. Consequently, section 191 must be given controlling effect and the SBA’s priority upheld. Appellants resist this conclusion, contending that their mechanic’s liens were duly perfected as a matter of state law and that section 191 does not operate against private liens which are specific and choate. The Supreme Court, however, has never actually held that specific and choate liens asserted by a private claimant are impliedly exempted from the operation of section 191. See United States v. Gilbert Associates, Inc., 345 U.S. 361, 365, 73 S.Ct. 701, 97 L.Ed. 1071 (1953); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 370, 67 S.Ct. 340, 91 L.Ed. 348 (1946); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 355, 65 S.Ct. 304, 89 L.Ed. 294 (1945); United States v. Texas, 314 U.S. 480, 485-486, 62 S.Ct. 350, 86 L.Ed. 356 (1941). On the contrary, it has adhered to the view that “in enacting § 3466 [31 U.S.C.A. § 191], Congress gave no indication whatever of intent to createdefeasible priorities.” Massachusetts v. United States, 333 U.S. 611, 627, 68 S.Ct. 747, 757, 92 L.Ed. 968 (1948). See also United States Dept. of Agri., etc. v. Remund, 330 U.S. 539, 544-545, 67 S.Ct. 891, 91 L.Ed. 1082 (1947); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 370, 67 S.Ct. 340, 91 L.Ed. 348 (1946); Illinois ex rel. Gordon v. United States, 328 U.S. 8, 12, 66 S.Ct. 841, 90 L.Ed. 1049-(1946); United States v. Emory, 314 U.S. 423, 433, 62 S.Ct. 317, 86 L.Ed. 315-(1941). We are likewise inclined to-doubt that any exception can be carved out of the sweeping language of section 191 which would allow an unforeclosed mechanic’s lien, however labelled, to defeat the absolute priority secured to the-United States by the statute. We do not reach this issue,, however, for there is no showing that the mechanic’s liens here asserted are-sufficiently specific and choate to ward: off the Government's priority claim.. Even assuming, as the appellants insist, that the liens are choate as a matter of Virginia law, such characterization by a state is far from conclusive. United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 99 L.Ed. 264 (1955); United States v. City of New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 98 L.Ed. 520 (1954); United States v. Security Trust & Savings Bank, 340 U.S. 47, 49-50, 71 S.Ct. 111, 95 L.Ed. 53 (1950); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 371, 67 S.Ct. 340, 91 L.Ed. 348 (1946); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 357, 65 S.Ct. 304, 89 L.Ed. 294 (1945); cf. United States v. Buffalo Savings Bank, 371 U.S. 228, 229, 83 S.Ct. 314, 9 L.Ed.2d 283 (1963). We are instead bound to look to federal law, as announced by the Supreme Court, for the final answer. Aquilino v. United States, 363 U.S. 509, 514, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); United States v. Scovil, 348 U.S. 218, 220, 75 S.Ct. 244, 99 L.Ed. 271 (1955); United States v. Security Trust & Savings Bank, 340 U.S. 47, 49, 71 S.Ct. 111, 95 L.Ed. 53 (1950); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 371, 67 S.Ct. 340, 91 L.Ed. 348 (1946); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 357, 65 S.Ct. 304, 89 L.Ed. 294 (1945); United States v. Oklahoma, 261 U.S. 253, 260, 43 S.Ct. 295, 67 L.Ed. 638 (1923). See 1A Moore’s Federal Practice, § 0.321. And the Court has made it abundantly clear that a competing lien cannot be considered specific and choate unless it has been “attached to certain property by reducing it to possession, on the theory that the United States has no claim against property no longer in the possession of the debtor.” United States v. Gilbert Associates, Inc., 345 U.S. 361, 366, 73 S.Ct. 701, 704, 97 L.Ed. 1071 (1953) (italics added). See also Thelusson v. Smith, 2 Wheat. 396, 4 L.Ed. 271 (1817); New York v. Maclay, 288 U. S. 290, 293-294; 53 S.Ct. 323, 77 L. Ed. 754 (1933); United States v. Texas, 314 U.S. 480, 484-485, 62 S.Ct. 350, 86 L.Ed. 356 (1941); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 373-377, 67 S.Ct. 340, 91 L.Ed. 348 (1946). Cf. United States v. Durham Lumber Co., 257 F.2d 570, 573-574 (4th Cir., 1958) (federal tax liens which do not reach property of bankrupt-taxpayer’s debtor cannot extinguish mechanic’s liens asserted againt property). Applying the same test to mechanic’s liens and claims of a similar nature, recent decisions leave little room for doubt that the interim steps of filing and recording the lien, without obtaining a final judgment enforcing the lien against the property, serves “merely as a caveat of a more perfect lien to come.” United States v. Vorreiter, 355 U.S. 15, 78 S.Ct. 19, 2 L.Ed.2d 23 (1957) (prior recorded mechanic’s lien); United States v. White Bear Brewing Co., 350 U.S. 1010, 76 S.Ct. 646, 100 L.Ed. 871 (1956) (same); United States v. Colotta, 350 U.S. 808, 76 S.Ct. 82, 100 L.Ed. 725 (1955) (same); United States v. Hulley, 358 U.S. 66, 79 S.Ct. 117, 3 L.Ed.2d 106 (1958) (prior recorded materialman’s lien); United States v. Scovil, 348 U.S. 218, 75 S.Ct. 244, 99 L.Ed. 271 (1955) (landlord’s distress lien); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294 (1945) (same). This is so even though the mechanic’s lien has been filed in the manner prescribed by state law and foreclosure proceedings are in progress at the time the Government first asserts its priority. United States v. White Bear Brewing Co., 350 U.S. 1010, 76 S.Ct. 646, 100 L.Ed. 871 (1956). And see United States v. Bond, 279 F.2d 837, 844-845, 849 (4th Cir., 1960) (majority and dissenting opinions); United States v. Latrobe Construction Co., 246 F.2d 357, 365 (5th Cir., 1957). Therefore, absent any showing that the mechanic’s liens have divested the debtor of either title or possession, United States v. Gilbert Associates, Inc., 345 U.S. 361, 366, 73 S.Ct. 701, 97 L.Ed. 1071 (1953), we perceive no basis for exempting appellants from the operation of section 191. II. THE VIRGINIA PRIORITY STATUTE AND “FEDERAL COMMON LAW” The federal insolvency statute being applicable, it is dispositive of the entire case. In the first place, it was established long ago that state laws purporting to fix priorities among lien-holders must yield to section 191 in any nonbankruptcy insolvency proceeding where it is applicable and seasonably invoked by the United States. Field v. United States, 9 Pet. 182, 200, 9 L.Ed. 94 (1835), per Marshall, C. J. See also Michigan v. United States, 317 U.S. 338, 340, 63 S.Ct. 302, 87 L.Ed. 312 (1943); United States v. Emory, 314 U.S. 423, 426-427, 62 S.Ct. 317, 86 L.Ed. 315 (1941); Barnett v. American Surety Co. of New York, 77 F.2d 225, 227 (10th Cir., 1935). Cf. United States v. Wad-dill, Holland & Flinn, Inc., 323 U.S. 353, 356-357, 65 S.Ct. 304, 89 L.Ed. 294 (1945) (federal claim entitled to priority over landlord’s distress lien accorded priority by Virginia statute). Hence, reliance by appellants upon the Virginia priority statute is misplaced, for however effective it may be on its face to secure their liens against competing non-federal claims, it is ineffective against claims of the United States. United States v. Security Trust & Savings Bank, 340 U.S. 47, 51, 71 S.Ct. 111, 95 L.Ed. 53 (1950); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 374-375, 67 S.Ct. 340, 91 L.Ed. 348 (1946). On the other hand, the SB A having asserted consistently throughout these proceedings its priority under the federal insolvency statute, it cannot simultaneously claim benefit of the common law rule, recently reformulated in United States v. City of New Britain, 347 U.S. 81, 85, 74 S.Ct. 367, 370, 98 L.Ed. 520 (1954), by which “the first in time is the first in right.” In the New Britain case, involving a governmental claim of priority for federal tax liens, the Supreme Court repeatedly asserted that no question of insolvency was at stake and that section 191 was for that reason inapplicable. Indeed, to reinforce the point, the Court cited and carefully distinguished an earlier lien priority ease, United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953), solely on the ground that the United States in Gilbert had proven the taxpayer insolvent and invoked section 191. Therefore, “in the absence of a statute to the contrary,” the Supreme Court felt free in New Britain to resort to the common law principle now advanced by the SBA. We, on the other hand, are bound by the existing facts to give effect to the long-standing congressional declaration of priority embodied in section 191. We are not at liberty to supersede the unambiguous, clearly applicable statutory test with one rooted in common law. III. EFFECT OF THE BANK’S ASSIGNMENT Judged in the light of Small Business Administration v. McClellan, 364 U.S. 446, 450, 81 S.Ct. 191, 5 L.Ed.2d 200 (1960), a case remarkably similar to our own, the SBA’s claim to priority is wholly unaffected by the fact that formal assignment of the note evidencing the debt was not made by the participating bank until after the present proceedings were initiated. Nor does the SBA’s contractual obligation to turn over 10% of any recovery on the note to the bank preclude any priority to which SBA is otherwise entitled. What the SBA does with any money collected on its 90% fractional interest in the loan is of no consequence to the issue of whether it may claim a priority. Id., 364 U.S. at 451-452, 81 S.Ct. at 195-196, 5 L.Ed.2d 200. On the other hand, we agree with the District Court’s conclusion that the Government’s statutory priority does not attach to the 10% fractional interest, in the note, of which the bank was the beneficial owner before the assignment was made to the Government. In the McClellan case, the Supreme Court merely decided that the Government’s priority extended to that portion of the loan as to which it initially held beneficial ownership, i. e., the portion of the loan consisting of funds put up by the SBA. The Court did not hold that the fractional interest put up by the private bank was entitled to priority. We think that the question whether the fractional interest that was assigned by the bank to the Government in this case is entitled to priority is governed by the principles of Nathanson v. N. L. R. B., 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952). In denying priority for a claim asserted by the Labor Board, the Court said in Nathanson: “It does not follow that because the Board is an agency of the United States, any debt owed it is a debt owing the United States within the meaning of R.S. § 3466. The priority granted by that statute was designed ‘to secure an adequate revenue to sustain the public burthens and discharge the public debts.’ [Citation omitted.] There is no function here of assuring the public revenue. The beneficiaries of the claims are private persons * * . “ * * We cannot * * * give priority to a claim which the United States is collecting for the benefit of a private party.” Id., 344 U.S. at 27-28, 73 S.Ct. 82-83, 97 L.Ed. 23. Distinguishing but not overruling Nathanson in the McClellan decision, the Court stated that: “This Court’s denial of priority in that case, involving claims in which the United States had no financial interest, would not justify a denial here where the money was loaned by, and the debt sought to be collected is due to, the United States.” 364 U.S. at 451, 81 S.Ct. at 195, 5 L.Ed.2d 200 (Emphasis added). Read together, the McClellan and Nathanson cases indicate that while the Government is free to dispose, as it wishes, of funds as to which it is entitled to a priority, it may not claim a priority for that portion of the debt that does not represent money actually loaned by the SBA. Consequently, in this case the SBA is entitled to a priority as to only 90% of the note. The judgment of the District Court is therefore affirmed as modified. Modified and affirmed. . 15 U.S.C.A. § 631 et seq. (Small Business Act of 1953, as amended). The overall objectives secured by this legislation have been summarized by the Supreme Court, as follows: “The Small Business Act of 1953 created the Small Business Administration to ‘aid, counsel, assist, and protect insofar as is possible the interests of small-business concerns in order to preserve free competitive enterprise * * * and to maintain and strengthen the overall economy of the Nation.’ The Administration was given extraordinarily broad powers to accomplish these important objectives, including that of lending money to small businesses whenever they could not get necessary loans on reasonable terms from private lenders. When a part, but not all, of a necessary loan can be obtained from a hank or other private lender, the Administration is empowered to join that private lender in making the loan.” Small Business Administration v. McClellan, 364 U.S. 446, 447, 81 S.Ct. 191, 193, 5 L.Ed.2d 200 (1960). . The special master found, and it is generally conceded, that the land and original improvements existing at the time of the loan had a value of $25,500. The improvements thereafter placed on Food-co’s property by the mechanics added $54.-500 to the value of the property, bringing the total valuation to $80,000. . The deed made reference to Code of Va. §§ 55-59 and 55-60, -which relate to the construction of Virginia deeds of trust and provide for foreclosure procedures in case of default. It does not appear that these two Code sections affect the determination of lien priorities, but merely define certain language employed in the deed of trust. Even if the deed had contained no specific reference thereto, these statutes would nevertheless govern its construction. Colonial Investment Co. v. Cherrydale Cement Block Co., 194 Va. 454, 73 S.E.2d 419, 424 (1952). . Code of Va. § 43-21: “No lien or encumbrance upon the land created before the work was commenced or materials furnished shall operate upon the building or structure erected thereon, * * * until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied * * See Rust v. Indiana Flooring Co., 151 Va. 845, 145 S.E. 321 (1928), wherein it was held that the beneficiary of a prior recorded deed of trust is subordinated to the holders of subsequent mechanic’s liens to the extent that the value of the property is increased by improvements. See also Dewitt v. Coffey, 150 Va. 365, 143 S.E. 710 (1927). From these cases the conclusion has been drawn that “there is no way that a person may lend money so that he will have priority over mechanics liens, where the money is to be used for the construction of a building.” 12 Michie’s Jurisprudence, Mechanics Liens, § 39 (1950). . Federal Land Bank v. Clinchfield Lumber & Supply Co., 171 Va. 118, 198 S.E. 437, 439 (1938) ; Fidelity Loan Co. v. Dennis, 93 Va. 504, 25 S.E. 546 (1896). . That the special master correctly construed the Virginia mechanic’s lien priority statute is here conceded by the United States. . 31 U.S.C.A. § 191 (Rev.Stat. § 3466). . Neither party to this appeal takes exception to the District Court’s order “that the real estate taxes assessed against the subject property have priority over all other liens against the property.” The SBA’s interest is specifically subordinated to the State’s lien for property taxes by 15 U.S.C.A. § 646. But beyond this concession the statute does not go. Cf. United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 86 L.Ed. 315 (1941). . The minor differences in phraseology between the original and the present statute “did not work any change in the purpose or meaning * * Price v. United States, 269 U.S. 492, 501, 46 S.Ct. 180, 181, 70 L.Ed. 373 (1926). See also Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 370, 67 S.Ct. 340, 91 L.Ed. 348 (1946); United States v. Emory, 314 U.S. 423, 428, 62 S.Ct. 317, 86 L.Ed. 315 (1941). . See also United States v. William R. Trigg Co., 115 Va. 272, 78 S.E. 542 (1913), upholding unrecorded contractual liens of the United States as against the priority claims of general creditors. The Supreme Court of Appeals of Virginia was of the opinion that the United States need not comply with the State’s registry laws in order to perfect its claim. And see United States v. City of Greenville, 118 F.2d 963, 965 (4th Cir., 1941). . There can be no question that the SBA is an agency of the United States, rather than a separate legal entity, for purposes of “the debts due to the United States” clause of § 191. Small Business Administration v. McClellan, 364 U.S. 446, 448-450, 81 S.Ct. 191, 5 L.Ed.2d 200 (1960) ; Cf. United States Dept, of Agriculture, etc. v. Remund, 330 U.S. 539, 541-542, 67 S.Ct. 891, 91 L.Ed. 1082 (1947). . It was unnecessary to show a “sale or other disposition” of Foodco’s property. However, at one period a third act of bankruptcy (judgment lien) could only be spelled out by “an affirmative act of disposal, not a mere lapse of time which leaves the lien intact and still requiring enforcement.” Citizens’ Banking Co. v. Ravenna National Bank, 234 U.S. 360, 368, 34 S.Ct. 806, 809, 58 L.Ed. 1352 (1914). But, thanks to a 1926 congressional amendment abrogating the effect of that decision, it is now sufficient that the insolvent debtor sits idly by and fails to vacate or discharge the judgment lien during the thirty-day period. See Elkay Reflector Corp. v. Savory, Inc., 57 F.2d 161, 162 (2d Cir., 1932); 1 Collier on Bankruptcy, § 3.309. . Early decisions of the Supreme Court held that previously-executed mortgages on the property of an insolvent debtor, being in the hands of the mortgagee and not the debtor, were unaffected by subsequent claims under the federal insolvency statute. Thelusson v. Smith, 2 Wheat. 396, 426, 4 L.Ed. 271 (1817); Conard v. Atlantic Ins. Co., 1 Pet. 386, 441, 444, 7 L.Ed. 189 (1828); Brent v. Bank of Washington, 10 Pet. 596, 611, 9 L.Ed. 547 (1836); Cf. Savings & Loan Society v. Multnomah County, 169 U.S. 421, 428, 18 S.Ct. 392, 42 L.Ed. 803 (1898). But it is thought that these-“original departures indeed did not contemplate that exceptions were being made.” Massachusetts v. United States, 333 U.S. 611, 634, 68 S.Ct. 747, 760, 92 LEd. 968 (1948). See also United-States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 355, 65 S.Ct. 304, 89 L.Ed. 294 (1945); United States v. Texas, 314 U.S. 480, 484-485, 62 S.Ct. 350, 86 L.Ed. 356 (1941); New York v. Maclay, 288 U.S. 290, 294, 53 S.Ct. 323, 77 L.Ed. 754-(1933). . The Virginia law does not necessarily compel such a conclusion. It is clear that an inchoate lien attaches when the work is done and which may be perfected by filing and recording it within sixty 4ays thereafter. Code of Va. § 43-4. See Hadrup v. Sale, 201 Va. 421, 111 S.E.2d 405, 407 (1959); Wallace v. Brumback, 177 Va. 36, 12 S.E.2d 801, 803 (1941). But the mechanic’s lien itself is not self-enforcing and is extinguished unless the lienholder files a bill in equity within six months, Code of Va. § 43-17, and obtains a decree against the debtor’s property. Code of Va. § 43-22. It does not appear that the mere filing and recordation of the lien operates to divest the debtor of his property, as is required by the federal choate lien test. United States v. Gilbert Associates, Inc., 845 U.S. 361, 866, 73 S.Ct. 701, 97 L.Ed. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. LEESONA CORPORATION, Appellant, v. COTWOOL MANUFACTURING CORPORATION, JUDSON MILLS DIVISION, Deering Milliken Research Corporation, and Whitin Machine Works, Appellees. No. 8684. United States Court of Appeals Fourth Circuit. Argued Jan. 23, 1963. Decided March 19, 1963. See also 308 F.2d 895. Robert F. Conrad, Washington, D. C. (Raymond P. DeMember, and Watson, Cole, Grindle & Watson, Washington, D. C., on brief), for appellant. Frederic P. Houston, New York City (James D. Poag, and Price & Poag, Greenville, S. C., Melvin Liebowitz and Otterbourg, Steindler, Houston & Rosen, New York City, on brief), for Deering Milliken Research Corp., appellee. Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges. ALBERT V. BRYAN, Circuit Judge. Arbitration provided for in a patent license covering machinery and processes has been temporarily stayed by the District Court from enforcement by appellant licensor who was seeking thereby to recover royalties of the licensee on products made with an assertedly infringing process and machine. The suspension is effective until the conclusion of a current suit instituted by the licensor against the alleged infringers. The licensor maintains here that neither the pendency of the suit, nor its outcome, may preclude licensor from a decision of the infringement and royalty issue by arbitration. It is both a contractual right based on the license, licensor asserts, and one secured also by the United States Arbitration Act, 9 U.S.C. §§ 1-14. But we uphold the decree as a temporary injunction auxiliary to the defense of the licensor’s suit. The order was one within the discretion of the trial judge and we find no misuse of his responsibility. Licensor is the Leesona Corporation, the owner of three patents (the patent) covering certain textile machinery and processes. Licensee is Schwarzenbach Huber Company. The license, dated June 17, 1955, permits licensee itself to make the machines, or have them made, as well as to manufacture the products under the patented process. The arbitration clause is in these words: “Any dispute or controversy arising under, out of, or relating to this agreement shall be submitted to arbitration in accordance with the rules at the time prevailing of the American Arbitration Association, New York City, New York, U.S.A. The decision of the arbitrators shall be final and binding upon the parties hereto and shall be available to the parties hereto as the basis for judgment in any of the United States, at the instance of the party entitled to any award given by the said arbitrators.” The primary, accused infringer is Deering Milliken Research Corporation. In 1957 it obtained the exclusive right to allow the use in the United States of a process and machine devised and constructed in France and competing with the process and machine of licensor Lee-sona. Thereafter Whitin Machine Works obtained the exclusive right to manufacture and distribute the French machine in the United States. Deering and Whit-in approved use of the French machine by Leesona’s licensee Huber who then put it into productive operation. Thus Huber was at the same time a licensee of Lee-sona and a holder of use-rights on the French machine from Deering and Whit-in. Leesona charges first that the French process and machine are an infringement of its patent. It then claims, as initially noted, that Huber is using the French process and machine to turn out products protected by the Leesona patent. On this basis Leesona predicates its claim against Huber and invokes the arbitration clause of the license agreement. Before the claim for arbitration was asserted, Leesona had commenced the present suit in the United States District Court for the Western District of South Carolina against Cotwool Manufacturing Corporation, an affiliate of Deering. It averred infringement by Cotwool in using, under permit of Deering and Whitin, one of the French machines at its South Carolina plant. Whitin then began an action in the Federal District Court in Massachusetts for a declaratory judgment to the effect that Leesona’s patent was invalid. Later, Deering and Whitin were made parties defendant to Leesona’s South Carolina action. At the instance of Whitin and for the convenience of the parties the District Court severed Leesona’s complaint as against Whitin and transferred that part of the litigation to the Massachusetts Federal District Court. The South Carolina Court simultaneously suspended further proceedings in the action as against Deering and Cotwool. We heretofore approved the severance, transfer and suspension. Leesona Corp. v. Cotwool Manufacturing Corp., 308 F.2d 895 (4 Cir. 1962). With the issue of infringement thus before the Massachusetts District Court, the District Judge in South Carolina believed the arbitration demanded by licen-sor Leesona of licensee Huber should be stayed until a determination of the litigation in Massachusetts, inasmuch as the arbitrator would have the same question before him. Leesona argues that .the Court had no authority so to interfere with the contractual right and obligation established by the license as between Leesona and Huber. It urges that the intent of the parties to save expense and time by providing for arbitration in lieu of suit to resolve their differences has been thwarted. It acknowledges the accepted practice of enjoining related suits to enforce a patent until its validity has been adjudged in an action pending between the principal parties to determine that question. Telephonics Corp. v. Lindly & Co., 291 F.2d 495 (2 Cir.1961); International Nickel Co. v. Martin J. Barry, Inc., 204 F.2d 583, 585-586 (4 Cir.1953). Nevertheless this course is not appropriate here, Leesona continues, first because the parties have expressly contracted otherwise, and secondly, because the underlying reason for the procedure is absent, the court decision in Massachusetts having no binding effect in the arbitration between licensor and licensee. Leesona also emphasizes its objection to the decree by stressing that the stay was granted at the instance of Deering, not of licensee Huber who was not a party to the suit. The answer to this argument, however, is that the decree does not abrogate the arbitral clause and in no degree passes upon its validity or efficacy. Access to arbitration is not barred but only intermitted. The injunction is no more than it has been denominated, a “stay”, altogether ancillary and temporary. That a contractual clause for arbitration is subject to suspension by injunction has been recognized. Amazon Cotton Mills Co. v. Duplan Corp., 245 N.C. 496, 96 S.E.2d 267, 270 (1957). The injunction is clearly incident to the defense of Leesona’s suit. In these circumstances the issuance of an injunction — whether considered interlocutory or final — is something within the judgment of the chancellor. He balances the equities: the injury to applicant if the decree is not allowed, and the injury to the opponent if the restraint is granted. If he acts with concern for the rights of both parties upon a reasonable foundation, his determination will not be disturbed. The District Court quite comprehensively considered all of the arguments of Leesona. However, it believed them outweighed by other consequences which might reasonably be expected to follow immediate pursuit of arbitration. On this subject, District Judge Wyehe said: “In view of the identity of the infringement issue, it seems likely that continued prosecution of the arbitration proceeding may cause irreparable injury to Research [Deering], to Whitin and to Schwarzenbach [Huber], Before this action is concluded, customers and prospective customers of Research [Deering] and Whitin (who are also licensed under the [French machine] patents in suit), fearing arbitration proceedings and litigation, may turn from ‘FT [French] Machines’ to competitive machinery and a later decision by this Court favorable to Research [Deering] and Whitin could not repair the damage. “The arbitration decision cannot be set aside for errors of law or fact. Consequently, a prior unfavorable decision by the arbitration panel would bind Whitin’s customer (and Research’s [Deering’s] licensee) Schwarzenbach [Huber] despite a later decision by this Court in favor of Research [Deering] and Whitin. The result would be an anomalous situation wherein Schwarzenbach [Huber] would have to pay royalties to Leesona for ‘FT [French] Machine’ production although this Court would have held that the licensed patents do not cover ‘FT [French] Machines’.” True, delay will result, but it is noteworthy that the demand for arbitration, as the District Judge remarks, was not presented by Leesona until its litigation had been pending for more than a year. Again, a staunch, practical reason exists for the delay: the ruling of the Federal Court in Massachusetts upon infringement will be highly persuasive, if not dispositive, in the decision of the arbitrator. The principles we have discussed are expounded with clarity in Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944), by Mr. Justice Douglas: “We are dealing here with the requirements of equity practice with a background of several hundred years of history. Only the other day we stated that ‘An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.’ Meredith v. Winter Haven, 320 U.S. 228, 235 [64 S.Ct. 7, 88 L.Ed. 9]. The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. * * * ” See also Rackley v. Board of Trustees, 310 F.2d 141 (4 Cir.1962); Smith v. Staso Milling Co., 18 F.2d 736, 738 (2 Cir.1927); 7 Moore, Federal Practice 1686-87 (2 ed. 1955). The District Judge has closely adhered to these fundamentals and his decree is not without warrant in equity and justice. Nor do we feel that in holding the arbitration in abeyance the decree breaches the Arbitration Act, 9 U.S.C. §§ 1-14. The District Court, to repeat, has not declined to recognize or enforce the arbitration provision. It has merely postponed resort to that remedy until termination of litigation commenced by Leesona. If after judicial settlement of that controversy Leesona still desires arbitration, it remains available. The Act does not oust the jurisdiction of the court. Equity may still prevent premature use of the clause. The statute itself envisages exertion by the court of equitable checks and balances; supervision of the arbitration by the court is expected. See Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319, 117 A.L.R. 299 (4 Cir.1938); American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6 Cir.1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L. Ed. 1074 (1949); Fremont Cake & Meal Co. v. Wilson & Co., 86 F.Supp. 968 (D. Neb.1949), aff’d, 183 F.2d 57 (8 Cir. 1950); cf. Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp., 293 U.S. 449, 452-453, 55 S.Ct. 313, 79 L.Ed. 583 (1935). We find no fault in the decree on review. Affirmed. Question: Are there two issues in the case? A. no B. yes Answer:
songer_state	44	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. Orlando Pershing HARP, Defendant-Appellant. No. 71-1426. United States Court of Appeals, Fifth Circuit. Jan. 31, 1972. John Fashing, El Paso, Tex., (court appointed) for defendant-appellant. Victor K. Sizemore, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex. for plaintiff-ap-pellee. Before THORNBERRY, MORGAN and CLARK, Circuit Judges. PER CURIAM: Orlando Pershing Harp was convicted under a single-count indictment for knowingly possessing a firearm in violation of 18 U.S.C. App. § 1202(a) (1). The statute punishes a previously convicted felon who “receives, possesses, or transports in commerce or affecting commerce .... any firearm”. 18 U.S.C. App. § 1202(a) (1). Subsequent to oral argument in this appeal, the Supreme Court held that this statute does not reach mere possession of firearms and, therefore, the government must demonstrate some nexus with interstate commerce when a defendant is charged with possessing or transporting a firearm. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488, 1971. A review of the record reveals that it was neither alleged in the indictment nor proved by the government that Harp possessed the .38 caliber pistol “in commerce or affecting commerce.” Since such a showing was not made by the government in this case, the conviction cannot stand. Because of the result we have reached, it is unnecessary to discuss the several other contentions Harp raises on appeal. The judgment of the district court is reversed and the cause is remanded to the district court for further proceedings not inconsistent with United States v. Bass, supra. Reversed and remanded. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Constantin CHRISTIDIS, Ind. on Behalf of Himself and All Others Similarly Situated v. FIRST PENNSYLVANIA MORTGAGE TRUST; Associated Advisers, Inc.: First Pennsylvania Corporation; First Pennsylvania Bank, N.A.; Peat, Marwick, Mitchell & Co.; John R. Bunting; Ralph W. Erwin, Jr.; Anthony G. Felix, Jr.; Philip C. Ehlinger; Samuel Evans, III; Daniel S. Ahearn; Edmund N. Bacon; Richard W. Baker, Jr. and M. Todd Cooke. Appeal of Constantin CHRISTIDIS. No. 82-1824. United States Court of Appeals, Third Circuit. Argued Aug. 1, 1983. Decided Sept. 12, 1983. Rehearing and Rehearing In Banc Denied Oct. 6, 1983. Stephen G. Console, Lewis Kates (argued), Kates, Livesey & Mazzocone, P.C., Philadelphia, Pa., for appellant. Robert S. Ryan (argued), Lawrence P. Byrnes, Drinker, Biddle & Reath, Philadelphia, Pa., for appellees, Samuel Evans, III, Daniel S. Ahearn, Edmund N. Bacon, Richard W. Baker, Jr. and M. Todd Cooke. Joseph W. Swain, Jr. (argued), Philadelphia, Pa., Victor M. Earle, III, Anthony J. Costantini, New York City, for appellee, Peat, Marwick, Mitchell & Co.; John E. Caruso, Mary F. Platt, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., of counsel. Edward F. Mannino (argued), Carl G. Roberts, Marguerite S. Walsh, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for appellees, First Pennsylvania Corp., First Pennsylvania Bank N.A. and Associated Advisers, Inc. Charles A. Crocco, Jr., Lunney & Crocco, New York City, for appellee, First Pennsylvania Mortg. Trust. Matthew M. Strickler, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellees, Ralph W. Erwin, Jr., Philip C. Ehlinger and Anthony G. Felix, Jr. Howard Gittis, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellee, John R. Bunting. Before GIBBONS and HUNTER, Circuit Judges, and COHEN, District Judge. Hon. Mitchell H. Cohen, United States District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT GIBBONS, Circuit Judge: Constantin Christidis appeals from a final judgment dismissing his third amended class action complaint for failure to state a cause of action. The complaint seeks money damages on behalf of a class of purchasers of shares of First Pennsylvania Mortgage Trust (the Trust) who purchased shares on or before December 29, 1977. It alleges that in issuing annual reports of the financial condition of the Trust for the fiscal years ending July 31, 1974, 1975, 1976 and 1977, the defendants violated the anti-fraud provisions of several federal securities acts. The gravamen of Christidis’ charge is that those financial statements understated the reserves which the Trust should have accrued for bad debts. The trial court held that the complaint did not allege fraud with the specificity required by Fed.R.Civ.P. 9(b), and dismissed it prior to permitting discovery. We affirm. I. The Allegations of the Complaint Christidis’ complaint contains general allegations summarized in this paragraph. The Trust was established in 1970 to invest in a diversified portfolio of short term development and construction first mortgage loans, other types of first mortgage loans, “wrap-around,” interim, and junior mortgage loans. The Trust also invested in equity interests in real estate acquired through or in lieu of foreclosure. Until its annual report for the fiscal year ending July 31, 1977 the Trust maintained and reported a composite or aggregated reserve for possible losses, making no breakdown between reserves for losses on loans and reserves for losses on equity interests acquired through or in lieu of foreclosure. In its annual reports for fiscal years 1975,1976 and 1977 the Trust represented “that the allowance for losses it had established and maintained for possible losses on loans it had outstanding and on property acquired by foreclosure was reasonable in the circumstances and determined in accordance with then existing reasonable and proper accounting practices and procedures when in fact it was not.” App. 127. It also represented that in the opinion of the Trustees, the amount of the reserve is adequate to cover any losses which may be reasonably anticipated at the time. App. 129. In the notes to the financial statement Peat, Marwick, Mitchell & Co. disclosed various steps which were taken by the Trust to establish the value of real estate acquired by foreclosure including independent appraisals and market studies. App. 130. The material allegation, therefore, is that the Trust made a misrepresentation that the reserve was established in accordance with existing reasonable accounting practices and procedures. Pressed through several successive motions for particulars as to how the 1975, 1976 and 1977 statements departed from those practices and procedures, Christidis added specific allegations respecting the deficiencies in each annual report. The 1974 annual report is alleged to be a false representation of reasonable accounting practices and procedures in that: (a) It reported a beginning balance for its composite allowance for possible losses on loans and property acquired by foreclosure of $421,365, additions thereto during that year of $479,790, which said additions were charged as an expense against current income, and an ending balance of $893,425 after taking into account a write-off of $10,730. (b) It knew or should have known that the opening balance, additions to and the closing balance for its allowance for possible losses were understated and did not reflect the actual losses Trust Defendant had already sustained in the value of its loan and property acquired through foreclosure accounts, that the losses it had sustained thereto during that year were greater than those which it had accounted for and that its closing balance for its allowance for possible losses were inadequate resulting in a material and substantial overstating of its assets and profits. (c) It knew and should have known that its use of and its reported composite allowance for possible losses on its loans and property acquired through foreclosure accounts were deceptive, incorrect and false, and cloaked the fact that its said allowance represented an accounting by it of its loans at greater than face or principal amount to the extent of $15,-774.687 at the beginning of that year and of $15,317,687 at the end thereof when in fact its loans were subject to recognized and substantial losses; further that its reported allowance for possible losses for property acquired by foreclosure was substantially understated resulting in said property being accounted for at substantially more than its recognized value. (d) It knew or should have known that by so doing it not only had materially overstated its assets and understated its losses but had improperly deferred recognition of actual losses it had incurred. Complaint, ¶ 47, App. 130-32. The allegations with respect to the 1974 annual report are repeated, with different numbers, for the annual reports for 1975, 1976 and 1977. Those allegations do not differ in substance. Thus for purposes of analysis we can focus on the allegations in paragraph 47 with respect to the 1974 annual report. II. Subparagraph (a) of paragraph 47 establishes no more than the opening and closing amounts of the reserve. Subparagraph (b) alleges that the opening balance, additions, and closing balance did not reflect “actual losses ... sustained in the value of its loan and property.” In context, the term “actual losses” is meaningless, for actual losses are reflected elsewhere in a financial statement than in reserves. Thus subparagraph (b) merely reasserts that the estimate for future losses in the opening balance, the additions to, and the closing balance were wrong. The subparagraph says nothing about the method whereby those estimates were made or the manner in which that method departed from reasonable accounting practices and procedures. Subparagraph (c) alleges that the Trust knew or should have known that its use of a composite allowance for possible losses on loans and property acquired through foreclosure was deceptive, and resulted in reporting its loans at greater than face or principal amount. Subparagraph (c) does not, however, set forth in what manner, in the year in question, the use of a composite loss reserve for loans and equity interests was a departure from reasonable accounting practices. The allegation that the “loans were subject to recognized and substantial losses” is meaningless, for the purpose of the reserve is to anticipate losses not yet recognized. The allegations that the allowance for possible losses for property acquired by foreclosure was substantially understated “in said property being accounted for at substantially more than its recognized value” is also meaningless, for it does not tell what is meant by “recognized value.” Thus the quoted language cannot be construed as an allegation that the property appraisals relied on were either knowingly false, or so facially unreasonable as to be beyond the realm of reasonable reliance for accounting practices. Subparagraph (d) merely states the conclusion that by doing what is alleged in subparagraphs (b) and (e) the defendants should have known they were materially overstating assets and understating losses. Thus it adds nothing to subparagraphs (b) and (c). III. The defendants, relying on certain cases decided in the Second Circuit, urge that we should read Rule 9(b) as a special pleading rule designed to facilitate the disposition, before discovery, of what they refer to as strike suits in the securities industry. We find more appropriate guidance, however, closer to home. In Cramer v. General Tel. & Electronics Corp., 582 F.2d 259, 272 (3d Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1048, 59 L.Ed.2d 90 (1979), we noted the distinction between the first and second sentences of Rule 9(b). The second sentence requires only that “intent, knowledge, and other conditions of mind ... be averred generally.” Id. at 273. The first sentence “requires that the complaint state with particularity the circumstances constituting the fraud.” Id. at 272. Historically, Rule 9(b) is derived from English common law practice. See C. Clark, Code Pleading § 48, at 312 (2d ed. 1947); English Rules for the Supreme Court under the Judicature Act, Order 19, Rule 6, The Annual Practice (1937). As Judge Clark noted: [i]t has been the rule under both common-law and code pleading that allegations of fraud must be made with a great degree of particularity. Thus, it is said that the elements of fraud in an action for false representation are five, as follows: (1) A specific false representation of material facts; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) the plaintiff acted upon it to his damage. C. Clark, Code Pleading § 48, at 312 (2d ed. 1947). It is the identification of these elements of a fraud claim which the first sentence of Rule 9(b) requires. The rule applies not only to fraud actions under federal statutes, but to fraud claims based on state law. In applying the first sentence of Rule 9(b) courts must be sensitive to the fact that its application, prior to discovery, may permit sophisticated defrauders to successfully conceal the details of their fraud. Moreover, in applying the rule, focusing exclusively on its “particularity” language “is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1298, at 407 (1969). In this instance, however, no matter how flexibly we apply the first sentence of Rule 9(b), it requires that we affirm the dismissal of the complaint. Its defect is the complete absence of any disclosure of the manner in which, in establishing reserves for bad debts in the financial statements relied upon, the defendants knowingly departed from reasonable accounting practices. Those reserves were estimates or predictions of the likely collection or liquidation experience of the Trust in the future. They could be fraudulent only if, when they were established, the responsible parties knew or should have known that they were derived in a manner inconsistent with reasonable accounting practices. What those practices are and how they were departed from is nowhere set forth. In Part II above we have parsed the allegations of paragraph 47 to find the alleged inconsistency from the undisclosed norm. We cannot find it. IV. The trial court concluded, correctly, that the complaint fails to state a cause of action for fraud. The judgment appealed from will be affirmed. . The defendants include: the Trust, a real estate investment trust organized in 1970; First Pennsylvania Corporation, a Pennsylvania banking corporation; First Pennsylvania Bank, N.A., a national banking corporation; Associated Advisers, Inc., the investment manager of the Trust; Peat, Marwick, Mitchell & Co., the Trust’s outside auditor; and John R. Bunting, Ralph W. Erwin, Jr., Anthony G. Felix, Jr., Philip C. Ehlinger, Samuel Evans, III, Daniel S. Aheam, Edmund N. Bacon, Richard W. Baker, Jr., and M. Todd Cooke, the trustees of the Trust in the relevant years. The statutes relied on are section 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77q(a) (1976), section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1976) and section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a) (1976). . Rule 9(b) provides: In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Fed.R.Civ.P. 9(b). . The complaint also makes allegations about annual reports issued subsequent to December 29, 1977. Those allegations are not material to the fraud charge, since they could not have been relied on by the class members Christidis seeks to represent, except to the extent that they might shed light upon the manner in which the 1974-1977 reports misrepresented that the reserves for those years had been established in accordance with reasonable accounting practices and procedures. The allegations add nothing in that respect. . See, e.g., Billard v. Rockwell International Corp., 683 F.2d 51, 57 (2d Cir.1982); Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 120 (2d Cir.1982); Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Denny v. Barber, 576 F.2d 465, 469 (2d Cir.1978); Brew v. Philips, Appel & Waldren, Inc., [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 97865 (S.D.N.Y.1981); Skubik v. Leeds, [1980 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 97629 (S.D.N.Y.1980); Seiden v. Butcher, 458 F.Supp. 81, 83 (S.D.N.Y.1978); Fein v. Shearson Hayden Stone, Inc., 461 F.Supp. 137, 141 (S.D.N.Y.1978); Morgan v. Prudential Group, Inc., 81 F.R.D. 418, 423 (S.D.N.Y.1978). 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_state	54	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Gilbert KINARD, Appellant, v. UNITED STATES of America, Appellee. No. 21429. United States Court of Appeals District of Columbia Circuit. Argued Jan. 16, 1969. Decided Feb. 24, 1969. Mr. William J. Kenney, Washington, D. C. (appointed by this court) for appellant. Mr. Stephen M. Schuster, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Miss Carol Garfiel, Asst. U. S. Attys., were on the brief, for appellee. Before Bazelon, Chief Judge, and McGowan and Leventhal, Circuit Judges. PER CURIAM: This is an appeal from a conviction of assault with a deadly weapon resulting in a sentence of one to three years. We affirm. The evidence was sufficient for the case to go to the jury. No tainted evidence was offered by the prosecution. The prosecution’s witness, Mrs. Simpson, a former girl friend of appellant, testified that on February 3, 1967, appellant was with the Simpsons at their apartment, drinking. He left at 10 p. m. but returned around 4 a. m. to ask why Ethel Simpson had made an abusive phone call to his wife. An argument broke out. Artie Simpson urged appellant to “stop talking so loud” and put his hand on appellant’s arm to show him out. Appellant pushed Artie Simpson across the kitchen. Simpson picked up an electric iron and hit appellant on the forehead. Then appellant drew a knife and cut Simpson across his right check. Appellant claimed that Simpson not only pushed him, and came at him with the iron, but came at him with the iron a second time, saying he would kill him and bust his brains out. But this was a disputed matter for the jury. The judge — who may well have been wondering why such affrays between people who describe themselves as “sort of friends” were brought to trial in District Court in summer — was certainly fair to defendant in every way. The judge instructed the jury with particular care on the question of self-defense, clearly placing the burden on the Government to prove beyond a reasonable doubt that the defendant’s action did not represent reasonable force used in self-defense. No reversible error is assignable to the fact that Artie Simpson was not called. Government counsel did not know until soon before the trial began on July 17, 1967, that Simpson could not be present, due to an epileptic seizure. Mrs. Simpson called Government’s attorney on Monday, July 10, but did not mention any illness of her husband. On July 12, the Government sought a continuance until the week of July 17, because Simpson was on vacation two hundred miles away. Defense counsel objected to any further continuances. When Government counsel learned of Simpson’s epileptic seizure, meaning he would not return for trial the following week, the Government decided to proceed without Simpson. Simpson’s absence did not cause defense counsel to seek a continuance, mistrial, or even a missing-witness instruction. Defense counsel used that absence to put it to the jury that Simpson was really not interested in pressing the charge — a tactic not without potency even though it did not achieve an acquittal. Now appellate counsel claims plain error in that the jury could not assess the self-defense claim in the light of an actual view of Simpson, his heft and his bulk. On the record before us we find no basis for reversal. A final point raised by defendant is the delay in obtaining the transcript. The trial was held within four months after indictment, a promptness that was reasonable, and indeed unusual for this district. After trial the transcript was ordered December 21, 1967, and not delivered until May 23, 1968. Defendant has been in detention since the trial, but defense counsel frankly advised the court on argument that he did not press this court for release pending appeal not merely because the Government objected in district court on ground of dangerousness, but because the family was cheered by the vocational training being given appellant in Lorton Reformatory, a training that might well lead to a brighter future. This court is much troubled by the problems of delay in furnishing transcripts, for generally the lawyer on appeal is “lost without such a transcript.” This problem has been the subject of continued attention by the Judicial Council, the Chief Judge of the District Court and its Executive Committee and the Administrative Office, and a glimmer of improvement looms ahead. Affirmed. . Appellant claims violations of Mallory, Miranda, or Wade-Gilbert-Stovall, but no evidence resulting from these alleged violations was adduced. . (1) Defendant testified that Simpson had grabbed and pushed him (Tr. 149-50). This is in conflict with the account of Mrs. Simpson who had testified (Tr. 44-45) that her husband did not “grab” or “shove” defendant. “He didn’t grab his arm, he just held his arm.” (Tr. 44) (2) Mrs. Simpson admitted that defendant might have said to Simpson “Get your hands off me,” but she testified (Tr. 45) she did not hear him also say “you’re pushing me.” (Defendant claimed he told Simpson not to push him any more. (Tr. 122) She also did not remember her husband saying to defendant he’d “knock your brains out” or “kill you” (Tr. 47), which is what defendant claimed. (Tr. 122) (3) The key point is defendant’s testimony that Simpson came towards him twice with an iron. Apart from the fact that defendant’s testimony is not particularly strong, see par. 8 below, it is enough to note here that Mrs. Simpson did not agree (though expressly asked on cross-examination) that her husband walked toward defendant after having hit defendant with an iron. (See Tr. 68) (4) Mrs. Simpson’s account was this (Tr. 9): “Mr. Kinard pushed my husband back towards the window, and that’s when my husband staggered up and got the iron and hit him with it. * * * Q: And then what happened? * * * A: He reached in his pocket and got the knife (Tr. 9) * * * and cut my husband with it; and I screamed and run into the bedroom and got my child and run outside.” (Tr. 12) She later stated that defendant used a switchblade knife, and that the cut ran on the left side of Simpson’s face from above the ear over to his nose. (Tr. 12-13). (5) Defense counsel, on motion for acquittal, claimed (Tr. 95) that the prosecutor’s own witness testified on cross-examination that Simpson advanced towards Kinard with an iron after having struck defendant with the iron the first time. The trial judge said his recollection was different and denied the motion. (Tr. 95). (6) As an appellate tribunal we have a limited office. We must be mindful that we do not have the benefit of impressions from the demeanor of the witnesses. Also we do not have, nor does the record contain, the actions in the court room. That was not insignificant in this case. For example, at one point defense counsel got Mrs. Simpson to say on cross-examination (Tr. 48) : “Q. Do you remember your husband advancing towards Gilbert with the iron.” “A. Tes.” But in context the jury had for consideration not only the inference of but one motion with an iron by Simpson, after he had been pushed, but also a demonstration of the kind of motion later described by defense counsel as “advancing”. Defense counsel had asked whether Simpson had “swung the iron around in an arc.” The witness replied — indicating with motions, as per request of defense counsel (Tr. 42)— A He took the iron from the cabinet just like this and swung it over like this. Q All right. Will the record indicate that the witness made a motion with her handbag from lower right to upper left and coming across. THE COURT: The motion I saw was straight down. THE WITNESS: He reached over on the cabinet and got the iron and hit him with it. THE COURT: Well the jury knows. The record will show. (7) It is not irrelevant, in terms of credibility, that Mrs. Simpson did admit, without any dissembling, various matters important to the defense position —in regard to her having defendant as a lover while married to Simpson; defendant’s moving out; and particularly her making an abusive call to defendant’s wife that night (Tr. 39), and defendant’s having come back to the apartment to insist that she desist from calling his wife, etc. (Tr. 44). (8) As for the testimony of defendant, as to Simpson’s alleged second advance, his direct testimony was that Simpson “was coming towards me.” (Tr. 122). Asked on cross-examination whether this was possibly merely Simpson’s “momentum” of a couple of steps after having hit defendant, defendant answered: “I don’t think so.” (Tr. 153). (9) While there is little doubt of the provocation, this was taken into account in the trial of the case. See, e. g., Tr. 16 for the ruling excluding proffer of testimony that a few minutes after the attack defendant allegedly said over the phone, “The next time I come back here I am going to kill you all.” This was offered as probative of .defendant’s state of mind. The judge commented (of course, out of the presence of the jury): “Well, I think if I had been hit over the head by an electric iron when I came to have a drink with some friends —I don’t think that goes to show intent.” (Tr. 16). (10) Other factors the jury might have taken into account: Defendant’s coming over at 4:00 a.m. while “upset” (Tr. 118) or “annoyed” (Tr. 139 and 160); defendant’s having a switchblade knife; his loud talking; defendant’s knowledge that he, aged 23, was considerably younger than Simpson (in his 40’s), who he knew was “retired.” (Tr. 138). (11) The essential question is whether defendant reacted with excessive force to the provocation. We cannot say this was beyond the realm of dispute and jury determination. . Cf. Holmes v. United States, 127 U.S. App.D.C. 332, 383 F.2d 925 (1967). . Gardner v. California, 394 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (U.S. Jan. 20, 1969). 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_circuit	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee, v. Walter Ward DORRELL, III, Defendant-Appellant. No. 84-5121. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 7, 1985. Decided April 17, 1985. Paul Seave, Los Angeles, Cal., for plaintiff-appellee. Yolanda B. Gomez, Los Angeles, Gal., for defendant-appellant. Before SNEED, POOLE, and FERGUSON, Circuit Judges. SNEED, Circuit Judge: The defendant, Walter Ward Dorrell III, appeals from his convictions for willfully injuring property of the United States, in violation of 18 U.S.C. § 1361 (1982), and for knowingly entering a military reservation for an unlawful purpose, in violation of 18 U.S.C. § 1382 (1982). Dorrell objects to the trial court’s refusal to allow him to present a defense of necessity and to the court’s exclusion of certain evidence and redaction of his written confession. The district court had jurisdiction under 18 U.S.C. § 3231 (1982). This court has jurisdiction over Dorrell’s timely appeal under 28 U.S.C. § 1291 (1982). We affirm. I. FACTS AND PROCEEDINGS BELOW On December 21, 1983, security guards apprehended the defendant in the area of the missile assembly plant at Yandenburg Air Force Base. After searching the defendant and the surrounding area, the guards found that Dorrell had carried with him a variety of tools, including a sledgehammer, two screwdrivers, a pair of bolt cutters, a crescent wrench, and a can of spray paint. Political slogans had been spray-painted on the missile assembly building and on a large shipping container standing nearby. Dorrell was taken to the base security building and questioned. He received and waived his Miranda rights. He then admitted that he had entered the base with the intention of damaging the MX missiles and that he had spray-painted the missile assembly building. Finally, Dorrell prepared a written statement setting forth the substance of his oral confession. Two days earlier, Dorrell had made a videotape, explaining his motivation for entering the base. On the tape, Dorrell stated that he intended to enter the base and destroy the MX missile. He wished to pound the missile into scrap metal, which could be used to make an instrument of peace. His desire to do so stemmed from his concern about nuclear war and world starvation. Dorrell expressed similar sentiments in both his oral confession and his written statement. At a pretrial discovery conference, Dorrell’s counsel intimated that Dorrell intended to assert the necessity defense. The government moved in limine to exclude this defense. At the hearing on the motion, the district court ruled that the defendant should make an in camera offer of proof if he intended to assert the defense at trial. Accordingly, Dorrell lodged under seal an offer of proof summarizing the evidence he would present in support of a necessity defense. Essentially, Dorrell proposed to introduce his own testimony and the testimony of three other witnesses about the threat of nuclear war and to play his videotape to the jury. After reviewing the defendant’s offer of proof, the district court granted the government’s motion in limine, finding that the proffered evidence was insufficient as a matter of law to support the necessity defense. The court also rebuffed Dorrell’s efforts to introduce the videotape, ruling on the morning of the trial that the tape was inadmissible. Finally, the court granted the government’s motion in limine to redact the defendant’s written confession, removing as irrelevant those portions that stated his reasons for entering Vandenburg. Following a jury trial, Dorrell was found guilty as charged. He received a suspended sentence and was placed on probation for five years. Commencement of the probationary period was stayed pending the outcome of this appeal. II. ISSUES The primary issue raised on appeal concerns the trial court’s treatment of the necessity defense. Dorrell contends that the trial court erred in granting the government’s motion in limine to exclude that defense. Dorrell also argues that the trial court abused its discretion in refusing to admit the videotape into evidence and in redacting Dorrell’s written confession. III. DISCUSSION A. Necessity Defense In support of his position that the granting of the motion in limine was error, Dorrell argues that the judge should have allowed him to present the evidence to the jury before ruling on the defense. Had he failed to establish the elements of the defense, the appropriate response, Dorrell contends, would have been to decline to give a jury instruction on necessity. This contention is without merit. Admittedly, a criminal defendant has the right to have a jury resolve disputed factual issues. United States v. Contento-Pachon, 723 F.2d 691, 695 n. 2 (9th Cir. 1984); see Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979). Where the evidence, even if believed, does not establish all of the elements of a defense, however, the trial judge need not submit the defense to the jury. United States v. Bifield, 702 F.2d 342, 346 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); see United States v. Bailey, 444 U.S. 394, 416-17, 100 S.Ct. 624, 637-38, 62 L.Ed.2d 575 (1980). Accordingly, we have in the past allowed the district court to determine the admissibility of the necessity defense by motions in limine. See, e.g., Contento-Pachon, 723 F.2d at 695; United States v. Lowe, 654 F.2d 562, 566-67 (9th Cir.1981). The sole question presented in such situations is whether the evidence, as described in the defendant’s offer of proof, is insufficient as a matter of law to support the proffered defense. If it is, then the trial court should exclude the defense and the evidence offered in support. Contento--Pachon, 723 F.2d at 693 (duress defense); United States v. Shapiro, 669 F.2d 593, 596 (9th Cir.1982) (same); accord United States v. Karr, 742 F.2d 493, 497 (9th Cir. 1984); United States v. Gordon, 526 F.2d 406, 408 (9th Cir.1975). The trial court ruled properly in this case. “The defense of necessity is available when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative.act that constitutes a greater evil.” Contento-Pachon, 723 F.2d at 695. Asserting the defense requires a showing that the defendant “act[ed] to prevent ‘an imminent harm which no available options could similarly prevent.’ ” United States v. Nolan, 700 F.2d 479, 484 (9th Cir.) (quoting United States v. May, 622 F.2d 1000, 1008 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980)), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). In addition, the defendant must establish that he reasonably anticipated the existence of a direct causal relationship between his conduct and the harm to be averted. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972); see also United States v. May, 622 F.2d 1000, 1008 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980). Here, Dorrell’s asserted necessity defense fails for two reasons. First, even if believed, the evidence summarized in his offer of proof does not establish that Dorrell lacked alternative courses of action to change United States nuclear policy or to avert the risk of nuclear war. Second, Dorrell cannot establish that he reasonably anticipated that breaking into Vandenburg would achieve these ends. We shall examine briefly each of these deficiencies. 1. The Availability of Other, Legal Alternatives to Violating The Law Those who wish to protest in an unlawful manner frequently are impatient with less visible and more time-consuming alternatives. Their impatience does not constitute the “necessity” that the defense of necessity requires. So it is here. Dorrell made no showing of the required “necessity.” “The defense of necessity does not arise from a ‘choice’ of several sources of action; it is instead based on a real emergency.” United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981). Consequently, “if there was a reasonable, legal alternative to violating the law,” the defense fails. United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980); accord United States v. Quilty, 741 F.2d 1031, 1033 (7th Cir.1984); United States v. Gant, 691 F.2d 1159, 1163-64 (5th Cir. 1982). Here, Dorrell had such an alternative. Although it is doubtful that Dorrell could bring a legal challenge to United States nuclear policy, he does have recourse to the political process to redress his concerns regarding nuclear war. “There are thousands of opportunities for the propagation of the anti-nuclear message: in the nation’s electoral process; by speech on public streets, in parks, in auditoriums, in churches and lecture halls; and by the release of information to the media, to name only a few.” Quilty, 741 F.2d at 1033. The availability of this option prevents Dorrell from raising the necessity defense in the instant case. Courts in other circuits have considered the status of the political process as an alternative to criminal behavior and have concluded that the defendant’s failure to resort to the political process precludes the assertion of the necessity defense to charges arising from political protests. For instance, in United States v. Seward, 687 F.2d 1270 (10th Cir.1982), cert. denied, 459 U.S. 1147,103 S.Ct. 789, 74 L.Ed.2d 995 (1983), the Tenth Circuit upheld the trial court’s refusal to entertain the defendant’s proferred necessity defense in a prosecution for trespassing arising from protests at the site of a nuclear power plant. The court noted that [t]he defense of necessity ____ can be asserted only by a defendant who was confronted with such a crisis as a personal danger, a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts. It is obviously not a defense to charges arising from a typical protest. Id. at 1276; accord United States v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979); cf. Quilty, 741 F.2d at 1033-34 (defendants convicted of illegally entering military property were not entitled to a judgment of acquittal based on the necessity defense because of the availability of reasonable, legal, alternative ways to express their political message). Admittedly, Dorrell’s offer of proof details his participation in a variety of protest activities and asserts that his political efforts were unavailing in preventing the development of the MX missile. In this respect Dorrell differs little from many whose passionate beliefs are rejected by the will of the majority legitimately expressed. Moreover, it may be he understates the effectiveness of the political process in this particular instance. To accept Dorrell’s position would amount to recognizing that an individual may assert a defense to criminal charges whenever he or she disagrees with a result reached by the political process. While the policy underlying the necessity defense is the promotion of greater values at the expense of lesser values, see W. LaFave & A. Scott, supra, § 50, at 382, it does not follow that the law should excuse criminal activity intended to express the protestor’s disagreement with positions reached by the lawmaking branches of the government. To do otherwise would deprive the protest of the validation of its sincerity that lawful punishment provides, force the courts to choose among causes they should make legitimate by extending the defense of necessity, and transgress the principle of separation of powers. Cf. United States v. May, 622 F.2d 1000, 1009 (9th Cir.1980) (rejecting proffered defense that the defendant’s acts were necessary to prevent violations of international law by the United States and noting, “We do not sit to render judgments upon the legality of the conduct of the government at the request of any person who asks us to because he happens to think that what the government is doing is wrong____ To [do so] would ... usurp[] the functions that the Constitution has given to the Congress and to the President.”), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980). Accordingly, we hold that the availability of alternative avenues for political action requires affirmance of the district court’s decision to exclude Dorrell’s necessity defense. 2. Direct Causal Relationship Between Dorrell’s Conduct and the Harm to Be Averted Dorrell’s argument also fails because he has not established that his actions would bring about the ends he sought. “An essential element of the so-called justification defenses is that a direct causal relationship be reasonably anticipated to exist between the defender’s action and the avoidance of harm.” United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972). Here, Dorrell failed as a matter of law to establish that his entry into Vandenburg and his spray-painting of government property could be reasonably anticipated to lead to the termination of the MX missile program and the aversion of nuclear war and world starvation. Simpson supports this result. There the defendant broke into the file room of a local office of the Selective Service Administration and set fire to the Administration’s draft records. Accused of destroying government property in violation of 18 U.S.C. § 1361, the defendant sought during trial to introduce evidence showing that his actions were justifiable as an effort to avert the death and destruction caused by the Vietnam War. The district court rejected the proffered evidence and refused to read an instruction based on the justification — or necessity — defense. Id. at 517. This court affirmed, noting that the defendant’s actions were unreasonable. Id. at 518. The Vietnam conflict would have continued without regard to whether the local draft board could restore the damage done to its files. Id. at 518 n. 7. Therefore, the defendant’s assumption that burning the file room might have a significant effect on the harm he sought to remedy was unreasonable. Id. at 518; see also United States v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979) (throwing blood and ashes on the walls and ceiling of the Pentagon as part of a political protest could not reasonably be expected to bring about a change in United States policy regarding nuclear weapons). We considered a situation virtually identical to the present case in United States v. May, 622 F.2d 1000 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980). There, the defendants, protesting the Trident missile system, entered a Naval submarine base in violation of 18 U.S.C. § 1382. This court affirmed the district court’s conclusion that the defendants had failed to satisfy all of the elements of the necessity defense “because there was no reasonable belief that a direct consequence of their actions would be the termination of the Trident program.” 622 F.2d at 1008. Dorrell offers no indication of how he expected his conduct to bring about a change in the MX missile program or a reduction in the risk of nuclear war. He cannot demonstrate that he reasonably anticipated a direct causal relationship between his acts and the harm he sought to remedy. It follows that the district court’s decision to reject the necessity defense as a matter of law was correct. B. The Videotape On the videotape, Dorrell set forth his political and religious reasons for entering Vandenburg and damaging the missile assembly building. The district court ruled that the videotape was inadmissible after the government’s opposition on grounds that it was hearsay and irrelevant. On appeal, Dorrell asserts that the videotape is admissible under Fed.R.Evid. 803(3) as a “statement of [his] then existing state of mind____” The trial court’s evidentiary rulings are reviewed for an abuse of discretion. United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984). This standard applies to the trial court's exclusion of evidence as inadmissible hearsay. See United States v. Layton, 720 F.2d 548, 558 (9th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). Dorrell seeks to introduce the videotape “to prove the truth of the matter asserted.” That is, he seeks to prove what the videotape expresses — his reasons for entering Vandenburg and defacing the missile assembly building. The videotape therefore constitutes hearsay. Fed.R.Evid. 801(c). Without regard to the possible admissibility of the videotapes under the hearsay exception of Rule 803(3) (then existing mental, emotional, or physical condition), the district court was entitled to exclude them under Rule 403. The rejection of the necessity defense reduced the relevance of the videotapes and, to the extent relevant, they were merely cumulative. Their exclusion did not constitute an abuse of discretion. C. The Redacted Confession While in the custody of the Vandenberg security forces, Dorrell prepared a handwritten statement confessing to the acts charged. The statement also set forth his political and religious motivations for entering the military compound and defacing the missile assembly building. After precluding the necessity defense, the court granted the government’s motion in limine to redact as irrelevant the portions of the written statement involving Dorrell’s motivations. On appeal, Dorrell contends that the court’s redaction violated the “rule of completeness” embodied in Federal Rule of Evidence 106. Rule 106 seeks to avoid the unfairness inherent in “[t]he misleading impression created by taking matters out of context.” Fed.R.Evid. 106 advisory committee note. Application of the rule of completeness is a matter for the trial judge’s discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981). Thus, the judge may exclude portions of written statements offered into evidence that are irrelevant. See id. Where the redacted statement is a confession, courts have held that there is no violation of the rule of completeness if the edited version neither “distorts the meaning of the statement or excludes information substantially exculpatory of the declarant,” United States v. Kaminski, 692 F.2d 505, 522 (8th Cir.1982), nor excludes “portions of a statement that are ... neither explanatory of [or] relevant to the admitted passages,” United States v. Marin, 669 F.2d 73, 84-85 (2d Cir.1982) (citations omitted). In this case, removing Dorrell’s explanation of the political and religious motivations for his actions did not change the meaning of the portions of his confession submitted to the jury. The redaction did not alter the fact that he admitted committing the acts with which he was charged. Further, because the defense of necessity was unavailable, Dorrell’s motivation did not excuse the crimes he committed. The omitted portions of his confession were therefore not exculpatory. We conclude that the redaction of Dorrell’s statement did not create a misleading impression by taking matters out of context. Dorrell was not prejudiced by the omission of his motivations from the statement admitted into evidence. The redaction of Dorrell’s statement by the district court, therefore, was not an abuse of its discretion. AFFIRMED. . The motion in limine also pertained to Dorrell’s effort to introduce a defense based on international law. Dorrell apparently abandoned that defense, and the district court, in its order granting the government's motion to ex-elude the necessity defense, noted that the corresponding motion in limine was moot. Dorrell has made no attempt to reassert his international law defense on appeal. . Traditionally, courts have applied the necessity defense when the actor’s choices were dictated by physical forces beyond the actor’s control, applying the defense of duress to coercion stemming from the actions of other human beings. United States v. Bailey, 444 U.S. 394, 409-10, 100 S.Ct. 624, 634-35, 62 L.Ed.2d 575 (1980); Contento-Pachon, 723 F.2d at 695; United States v. Micklus, 581 F.2d 612, 615 (7th Cir.1978). Modern cases have blurred this distinction, see Bailey, 444 U.S. at 410, 100 S.Ct. at 634, and courts have considered the defense of necessity when, as here, the defendant assertedly acted in the interest of the general welfare. Contento-Pachon, 723 F.2d at 695. We believe Dorrell’s defense is properly characterized as necessity. See also W. LaFave & A. Scott, Handbook on Criminal Law § 50, at 381 n. 2 (1972) (“The typical duress case ... has involved a situation in which A has ordered B to engage in certain conduct prohibited by the criminal law or else suffer certain consequences. It might well be argued that when an individual acts to avoid a greater harm from a person who has not given such an order ... the situation ought to be dealt with as a form of necessity rather than duress.’’) (citation omitted). . The narrow limits of the defense are perhaps best illustrated by the Supreme Court's decision in United States v. The Diana, 74 U.S. (7 Wall.) 354, 19 L.Ed. 165 (1869). There, the necessity argument was advanced by the master of a ship trying to run the Union blockade of Confederate ports during the Civil War. A unanimous Court said; It is undoubtedly true that a vessel may be in such distress as to justify her in attempting to enter a blockaded port. She may be out of provisions or water, or she may be in a leaking condition, and no other port be of easy access. The case, however, must be one of absolute and uncontrollable necessity; and this must be established beyond a reasonable doubt. "Nothing less,” says Sir William Scott, “than an uncontrollable necessity, which admits of no compromise, and cannot be resisted,” will be held a justification of the offense. Any rule less stringent than this would open the door to all sorts of fraud. Attempted evasions of the blockade would be excused upon pretenses of distress and danger, not warranted by the facts, but the falsity of which it would be difficult to expose. . In United States v. Richardson, 588 F.2d 1235 (9th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979), we considered a defense of necessity interposed against a charge of conspiring to smuggle the drug laetrile into the United States. The FDA had classified laetrile as a new drug, requiring FDA approval before the drug could be transported in interstate commerce. Because the FDA had withheld its approval, and because customs officials would therefore seize all quantities of the drug declared at the border, the defendants determined to smuggle laetrile produced in Mexico into the United States. Id. at 1237-38. After considering an offer of proof, the district court excluded the defendants’ evidence pertaining to the defense that showed laetrile's utility as a cancer drug and the defendants’ contentions that the FDA classification was improper. Id. at 1239 n. 3. This court affirmed, on the basis that the defendants had failed to pursue other alternatives that were available to them. The defendants could have produced laetrile in the United States, rather than smuggle it across the border. Better still, they could have taken steps to make their actions legal by mounting a legal challenge to the FDA’s classification or its failure to approve the drug. Alternatively, the defendants could have legally challenged the seizure of the drug at the border. The defendants' failure to pursue these options precluded their assertion of the necessity defense. Id. at 1239. . Admittedly, the district court in May had allowed a full presentation of the necessity defense, and the Ninth Circuit based its finding upon a full factual record. All Dorrell seeks here is an opportunity to make a similar presentation. In United States v. Lowe, 654 F.2d 562 (9th Cir.1981), however, we upheld a decision to disallow a necessity defense as a matter of law on the same basis as that used by the May court — namely, that the defendants had failed to demonstrate that a direct consequence of their acts could reasonably be expected to be the termination of the policy they were protesting. Lowe arose from subsequent Trident protests at the same Naval base involved in May. Noting that the defendants had not offered evidence indicating a significant change in conditions since the May case was decided, the Lowe court concluded that the district court had properly relied on May in rejecting the necessity defense as a matter of law. Id. at 566-67. We reach the same result here. We recognize that the holding in Lowe rests at least in part on the factual record developed in May, while the facts of Dorrell’s case are different. But the reasoning employed by the Lowe court applies with equal force in the present case. There is nothing in Dorrell’s offer of proof indicating any significant difference between his conduct in entering Vandenburg and the conduct of the Lowe and May defendants in entering the submarine base. . Rule 106 states in relevant part that "[w]hen a writing ... is introduced by a party, an adverse party may require him ... to introduce any other part ... which ought in fairness to be considered contemporaneously with it.” Fed.R. Evid. 106. . Courts have used redacted confessions in fairly limited situations. The most common usage arises in criminal cases involving multiple defendants to avoid implicating nontestifying co-defendants. See, e.g., United States v. Kaminski, 692 F.2d 505, 522-23 (8th Cir. 1982) (redaction of implicating portions precluded need for severed trials); United States v. Marin, 669 F.2d 73, 80 (2d Cir. 1982) (redaction employed as an alternative to severed trials). Redaction is also used to omit portions of a confession that refer to unrelated crimes. See 1 J. Weinstein & M. Berger, Weinstein’s Evidence ]f 106[01], at 106-9 (1982). Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_fedlaw	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. William T. TURNER, Appellant, v. SCHERING-PLOUGH CORPORATION. Nos. 89-5214, 89-5534. United States Court of Appeals, Third Circuit. Argued Dec. 1, 1989. Decided April 23, 1990. Robert S. Dowd, Jr. (argued), Giordano, Halleran & Ciesla, A Professional Corp., Middletown, N.J., for appellant. Richard C. Mariani (argued), Jerrold J. Wohlgemuth, Apruzzese, McDermott, Mas-tro & Murphy, Springfield, N.J., for appel-lee. Before BECKER and STAPLETON, Circuit Judges, and KELLY, District Judge The Honorable Robert F. Kelly, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT STAPLETON, Circuit Judge: Plaintiff William Turner was terminated from his job with the defendant Schering-Plough Corporation (“Schering”) after 37 years of employment. He alleges that, over the course of three years, he was demoted, had his new job eliminated, and was terminated, all because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and New Jersey’s Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et seq. Turner also contends that his discharge was motivated by an intent to deprive him of pension benefits in contravention of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Finally, Turner alleges that Scher-ing breached its contractual obligations to him under New Jersey law by discharging him without complying with implied promises it made in its employee personnel manuals. Schering moved for summary judgment in its favor on all these claims. Initially, the district court granted summary judgment for Schering on Turner's ERISA and state law wrongful discharge claims, as well as his claims for liquidated damages under the ADEA, 29 U.S.C. § 626(b), but declined to grant summary judgment for Schering with respect to Turner’s remaining claims under the ADEA and the NJLAD. Upon a motion for reconsideration, however, the district court concluded that summary judgment for Schering with respect to these remaining claims was appropriate. Turner v. Schering-Plough Corp., 705 F.Supp. 1048 (D.N.J.1989). Turner filed this timely appeal. We conclude that summary judgment for Schering was appropriate with respect to all of Turner’s claims other than his claim under the ADEA and the NJLAD that age played a role in the decision to discharge him. On that claim, however, Turner is entitled to a trial. I. Turner was 55 years of age at the time of his termination. He started as a mail boy with Schering in June of 1948 and, except for a four-year stint in the Navy, was employed by Schering until December 1985. During his years at Schering, Turner performed capably and steadily climbed the corporate ladder. He worked as a quality control clerk, quality control supervisor, supervisor of inspection control, manager of Schering’s Midwest Distribution Center, a market research associate, product manager for cardiovascular services, and manager of sales services, and also managed to complete his studies for a Bachelor’s Degree in Business Administration. In 1976, Turner reached the highest position he was destined to hold at Schering when he was selected to be Manager of Distribution Services for Schering’s United States Pharmaceutical Products Division (“USPPD”). This was a grade 91 position in the Schering hierarchy which made Turner eligible for management incentive bonuses. In this position, Turner was responsible for the distribution of Schering products nationwide, the capital, labor, and logistical decision-making necessary thereto, and related functions such as customer orders, billing, and customer service. Turner supervised four to five area distribution managers, as well as Schering’s Manager of Customer Service, Manager of Distribution Systems Projects, and Billing Supervisor. Overall, Turner managed between 100 and 180 employees. During his tenure, distribution services had an operating budget as high as ten million dollars, and sales of 500 to 600 million dollars. From 1976 until September of 1982, Turner reported to Tom Grimaldi, then Vice-President for Sales of USPPD. Gri-maldi is older than Turner. Throughout his years under Grimaldi, Turner consistently received performance reviews that rated his overall performance as very good. All was calm until September of 1982, when Schering altered its managerial reporting structure so that the distribution function Turner managed was transferred from the Sales and Marketing Department to the Pharmaceutical Manufacturing Department. Turner’s responsibilities remained approximately the same, but he now had a new supervisor, Steven LaHood, a 35 year-old manager who had been with Schering for only two years. LaHood was not a vice-president like Grimaldi; rather he was the Director of Logistics for the Manufacturing Department. Soon thereafter, LaHood and Turner visited several of the distribution centers under Turner’s control. LaHood was displeased with what he found to be operational deficiencies such as inventory inaccuracies, management overstaffing, a poor organizational structure, and severe structural problems at the Dallas distribution center. When he asked Turner about these problems, LaHood was disturbed because he felt Turner’s responses reflected a lack of knowledge about important aspects of the operations under his control. LaHood informed Turner of his unhappiness and instructed him how the distribution services operations were to be managed. That fall LaHood also visited Schering’s distribution center in Maplewood, New Jersey. LaHood found a number of problems: inoperable lift trucks, broken conveyor belts, and a poor phone system. He believed these problems resulted in low morale among the employees, who found themselves without the necessities for performing their jobs. LaHood felt none of these problems had been adequately addressed by Turner or the manager of the Maplewood facility. LaHood transferred the manager to another position; thereafter the manager told LaHood he did not receive the support he needed from Turner to solve the problems at Maplewood. LaHood’s negative view of Turner’s performance as Manager of Distribution Services is reflected in a series of performance evaluations. LaHood’s first performance review of Turner was given orally to Turner in November 1982, and was memorialized in a memo on December 9, 1982. The memo details LaHood’s own management style, sets forth standards to which the Manager of Distribution Services was to adhere, and lists the problems LaHood identified. LaHood specified how Turner needed to improve as a manager, particularly in his relations with other employees, and stated that he would review Turner’s performance periodically over the coming months and make an assessment to Turner’s “potential future” as Manager of Distribution Services. App. at 622. In February 1983, LaHood filled out a performance summary regarding Turner. In this summary LaHood indicates that Turner displayed “some very good performance relating to budgeting controls, inventory accuracy and productivity increases” [and noted]... some positive results in Bill’s performance managing the daily business activities within the Distribution Services area.” Id. However, La-Hood again stressed the need for Turner to improve his performance in certain problem areas if he was to succeed at his level within Schering, and suggested that Turner take a “Middle Management Program,” and engage in training in “Problem Solving and Decision Making”, “Improved Performance”, and “Assertiveness.” App. at 630. In May 1983, LaHood filled out his final review of Turner’s performance as Manager of Distribution Services. LaHood rated Turner’s performance as good in the following categories: (1) performance versus goals; (2) performance versus operating plan; and (3) performance versus prior year. Turner was rated as needing improvement in the areas of: (1) improvements in operations; (2) organization and planning of his own work and the work of subordinates; and (3) appraisal and development of subordinates. Turner’s performance was rated unsatisfactory in these areas: (1) foresight and plans; (2) building a strong organization including key management succession; (3) leadership; (4) decisionmaking (borderline rating of needs improvement and unsatisfactory); and (5) relationships with others. Turner’s overall performance rating was unsatisfactory. This was Turner’s final review because that same month LaHood recommended that Turner be replaced as Manager of Distribution Services and be offered a new position specifically created for him, Manager of Logistics Services. This was a grade 90 position in which Turner would not be eligible for management incentive bonuses and would control only ten people. LaHood’s recommendation was approved and Turner was told he was being demoted on June 23, 1983. A “personal and confidential” memo by Richard Happel, Scher-ing’s Director of Personnel who reviewed the decision to demote Turner, reflects Happel’s version of a conversation he had with Turner that day. The memo indicates that Turner was unhappy but unsurprised by the demotion. “Turner also said he didn’t agree with the criticisms of him and still feels [redacted] is pulling the strings behind all of this.” App. at 649. (Redaction in original). Turner told Happel he saw the new leadership skills LaHood advocated as negatives and that he was opposed to LaHood’s style of management, but said he would give a 100% effort in his new position, and would go see a management consultant Happel suggested. But nowhere in the record does Turner dispute the specific allegations of performance deficiencies and operational problems LaHood identified in his deposition testimony and in memos related to Turner’s performance. Turner accepted the new position, which he claims LaHood said was “viable,” “dynamic,” and had tremendous growth potential, and assumed its duties in July of 1983. App. at 703, 518. Turner was given the responsibility for managing the transportation of Schering products from the manufacturing site to the distribution centers, as well as responsibility for managing the distribution requirements planning and logistic projects functions. LaHood avers that this was a position in which Schering could take advantage of Turner’s skills in these areas while sharply reducing his responsibilities in the area in which he was weakest, personnel management. Turner was replaced as Manager of Distribution Services by Rich Marino, a 38 year-old, hired by Schering less than a year earlier. During his two years as Manager of Logistics Services, Turner’s overall performance was graded as very good by LaHood. LaHood reviewed Turner’s performance as good or very good in these areas relevant to personnel management: (1) leadership; (2) the organization and planning of his own work and work of subordinates; (3) the appraisal and development of subordinates; (4) achieving results through others; and (5) relationships with others. Turner received regular salary increases. A Schering Vice-President sent Turner a letter praising his performance, particularly for achieving a savings for the company of $660,000 in 1984, and telling him to “[k]eep up the good work.” App. at 796. Turner claims he achieved an even bigger savings in 1985. While in this position Turner also took steps to address some of the problems LaHood identified in 1982 and 1983. He worked with a management consultant and attended in-house training programs in effective oral communication and project planning. In 1985, the chill wind of managerial reorganization sent shivers through USPPD. Schering formed an internal management team, which included Happel, to evaluate the Division’s management structure. To aid in this task the company retained a consulting firm which advocated a management theory focusing on “reporting relationships” and “functions” in an attempt to maximize the “span of control,” i.e., the managing capacity, of each manager. This reorganization study eventually resulted in a major restructuring of USPPD, allegedly consistent with this theory. Turner’s position as Manager of Logistics Services was eliminated in November 1985. Schering contends that Turner’s job was eliminated because the three functions that reported to Turner, transportation, distribution requirements planning, and logistics planning, each had a more direct relationship with functions in other departments. Thus, the three functions went their separate ways: the first to purchasing, the second to production planning organization, and the remaining function to manufacturing systems-planning. The functions previously entrusted to Turner were divided among three other managers in three different Schering departments: Robert Douglass, age 41; Phillip Duffy, also age 41; and Robert Beck, age 38. Although 3,000 employees were affected by the reorganization, Turner, despite his long years of service and very good performance as Manager of Logistics Services, was one of only 15 employees terminated company-wide after the shake-up. Though Happel and LaHood each claims to have considered where Turner might be placed within the company, the only position open for which Happel thought Turner was qualified by training and experience was that of a grade 87 packaging supervisor. LaHood claims he did not offer this job to Turner because he did not believe Turner would perform well in that position since it required direct control over 30 to 40 hourly employees, and Turner had displayed weakness in personnel management and employee relations when he was Manager of Distribution Services. Turner was not offered his old job, renamed Manager-Distribution Centers, which was filled instead by John Sideck, a man in his 30’s. Losing his job with Schering meant that Turner was eligible for only 53.1% of the Schering pension plan benefits he would have been entitled to had he worked for 2½ more years with Schering, since he would have then had 40 years of service and would have been entitled to retire with 100% benefits at age 60. Schering was aware of the effect this discharge had on Turner’s pension benefits. II. The standard of review of a district court’s entry of summary judgment is plenary. Summary judgment is only appropriate when, after considering the record evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988). “Summary judgment will not lie if the dispute about a material fact is ‘genuine’, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). However, when the record is such that it would not support a rational finding that an essential element of the nonmoving party’s claim or defense exists, summary judgment must be entered for the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). III. We turn first to Turner’s claims under the ADEA and the NJLAD. Since the New Jersey act utilizes the same analytical framework as is applicable under the ADEA, see Shaner v. Horizon Bancorp., 116 N.J. 433, 561 A.2d 1130 (1989); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 429 A.2d 341 (1981), we will discuss the federal and state claims together. The evidentiary burdens under each statute are reflected in the burden shifting approach set forth by the Supreme Court in Title VII cases: First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). This court has adopted the Burdine approach for use under the ADEA. See, e.g., Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897-98 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). To make out a prima facie case, a discharged employee in an age discrimination case must show: (1) that he belongs to the protected class, i.e., is older than forty; (2) was qualified by training and experience for the job from which he was discharged; and (3) was replaced by a person sufficiently younger to permit an inference of age discrimination. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Where the discharged employee's job is eliminated and he is, therefore, not replaced, the employee need only show that he was laid off from a job for which he was qualified while other workers not in the protected class were retained. Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 n. 1 (3d Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). Once the employee makes this showing, his employer must proffer a legitimate nondiscriminatory reason for discharging him. If the employer meets this burden, the burden of production shifts back to the employee to show that the defendants’ stated reasons were mere pretext and not worthy of credence. At all times, the employee retains the burden of persuading the trier of fact that age was a determinative factor in the defendant’s decision to take an adverse employment action against him. White, 862 F.2d at 59-60. “Age need not be the sole factor, but it must have made ‘a difference in the [employer’s] decision.’ ” Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 48 (3d Cir.1989) (quoting Chipollini v. Spencer Gifts Inc., 814 F.2d at 897). An employee may defeat summary judgment by producing “evidence of inconsistencies and implausibilities in the employer’s proffered reasons for discharge [which] reasonably could support an inference that the employer did not act for nondiscriminatory reasons_” Chipollini, 814 F.2d at 900. In this situation, the inquiry of the reviewing court is focused; if the record contains evidence supportive of a rational inference that the employer’s reasons are “unworthy of credence,” summary judgment for the employer is improper. Sorba, 821 F.2d at 203. IV. The district court found, and the defendants do not contest, that Turner made out a prima facie case. He was a member of the protected class at all relevant times and he was qualified by training and experience for the position from which he was demoted, the position from which he was terminated, and for the packaging supervisor position left open after the reorganization. In the case of his demotion, Turner was replaced by Richard Marino, then age 38, who was sufficiently younger to give rise to an inference of discrimination. With respect to the reorganization, there is evidence that more junior employees, such as the three managers, ages 38 to 41, who took over the supervisorial responsibilities Turner held as Manager of Logistics Services, were treated more favorably. Turner thus met his initial burden. The district court also found, and Turner does not contest, that Schering proffered evidence of a legitimate nondiscriminatory reason for each of the actions it took with respect to Turner. The affidavit and deposition testimony of LaHood, as well as his performance reviews of Turner, indicate that Turner was demoted for performance deficiency. Schering further contends that Turner’s job as Manager of Logistics Services was eliminated because the three functions that reported to him were more logically related to functions in other departments. As for the company’s decision not to offer Turner another position, La-Hood and Happel averred that they looked for spots for Turner and found only one for which he was qualified, packaging supervisor. Since this position required the holder to supervise 30 to 40 hourly workers, they did not believe Turner would be a good choice because he performed inadequately in the area of employee relations while Manager of Distribution Services. Our consideration of whether the district court erred in granting summary judgment comes down to the question of whether Turner has produced sufficient evidence from which a rational factfinder could conclude Schering’s asserted reasons for its actions are unworthy of credence. A separate analysis is required with respect to each of the three decisions that Turner challenges: (1) his demotion; (2) the elimination of his position as Manager of Logistics Services; and (3) the failure of Scher-ing to offer him another job. A. Turner relies almost exclusively on the existence of favorable reviews of his performances as Manager of Distribution Services to show the pretextual nature of Schering’s decision to demote him. There is no denying the highly favorable impression of Turner’s abilities these reviews reflect. Over the years, Grimaldi at various times indicated that Turner met all his goals in “an outstanding manner,” App. at 747, and made “many significant contributions to the overall operation of Schering Distribution Services.” In his last evaluation of Turner, completed March 1, 1982, Grimaldi said “Turner fulfilled all of his job responsibilities in... a most desirable manner,” and there was “little opportunity to provide him with further guidance on how his operation might be improved”. App. at 766. From 1976 to 1982 Turner was generally graded as good or better in several areas relevant to personnel management: (1) employee selection and development; (2) building a strong organization; (3) relationships with others; (4) leadership; and (5) organizing his own work and the work of subordinates. But not everything in these reviews is favorable. In 1979, Grimaldi stated that “there has to be an improvement in [Turner’s] patience and tolerance when he first faces adverse situations,” and that “there must be a reduction in the level of irritation.” App. at 752, 753. He recommended that Turner attend a course in the art of negotiating. In 1981, Grimaldi said Turner must improve in his relationships with others and should take a course in interpersonal relations. As we have seen, LaHood’s view of Turner’s performance in the very same job was not nearly as favorable as Grimaldi’s. La-Hood identified serious problems at the Dallas and Maplewood Distribution Centers that Turner had not adequately addressed. LaHood found Turner lacking in the ability to evaluate alternatives, unaware of key aspects of the operations under his command, and deficient in leadership and interpersonal skills. Yet he rated Turner’s performances as good with respect to performance versus goals, performance versus operating plan, and performance versus prior year. Indeed, on March 31, 1983, LaHood noted “some very good performance relating to budget controls, inventory accuracy, and productivity increases.” App. at 629. Turner argues that the close proximity between the last very positive Grimaldi evaluation and LaHood’s very negative evaluation of Turner’s performance as Manager of Distribution Services raises a material issue of fact as to whether performance was really the reason for Turner’s demotion. We disagree. It was LaHood who had responsibility for the success of the unit in which Turner worked at the time of the demotion decision and it was LaHood who, subject to review, made that decision. Accordingly, the relevant question is whether there is any reason to believe that LaHood did not make the demotion decision for the reasons he now tenders' — what he saw as the serious and unattended problems at the Dallas and Maplewood Centers, and Turner’s ignorance of some of the key operations under his control and deficiencies in employee relations. This record will not support an inference that the tendered reasons were pretext for age discrimination. Turner has offered no evidence tending to show that serious and unattended problems did not exist within his jurisdiction or that LaHood’s other criticisms at the time of the demotion decision were unjustified. Turner’s affidavit reflects no more than that he did not like LaHood’s management philosophy and that he believes LaHood demoted him because of his age. In the context of the specific, substantial, and undisputed performance deficiencies contemporaneously documented by LaHood as he made his evaluations of Turner, the Grimaldi performance reviews are not sufficient to create a material dispute of fact concerning LaHood’s sincerity. Indeed, the most significant thing about Grimaldi’s reviews is that they tend to confirm some of the problems identified by LaHood. Beyond this they demonstrate only that Grimaldi had a higher opinion of Turner’s overall value to the company than did LaHood. In the context of the specific evidence of performance difficulties we have noted, this is not enough to preclude summary judgment. Healy, 860 F.2d at 1220 (employee “must introduce evidence that casts doubt on his employer’s contention that there was a legitimate business justification for letting him go”). B. Turner’s second allegation is that his age played a role in the decision to eliminate the position of Manager of Logistics Services which he held at the time of the reorganization. Turner’s evidence is deficient here as well. In attempting to show that Schering’s efficiency-based reasons for eliminating this position were unworthy of credence, Turner points to a bewildering array of factors, none of which addresses the reasons Schering says caused it to eliminate this position. The rationale Schering offers for its decision to eliminate his position is wholly consistent with the philosophy underlying its massive reorganization — reordering managerial reporting relationships according to function. Turner has produced no evidence that the reporting relationships created by the elimination of his position are in any way inconsistent with the rationale of the reorganization. Healy, 860 F.2d at 1220. Rather, Turner asserts that the reorganization did not focus solely on “reporting relationships” and “functions” since Scher-ing knew who held the affected positions and some of the few Schering managers who lost their jobs after the reorganization were selected for termination because of poor performance. But Schering does not deny it knew who its managers were; it merely asserts that it reorganized its managerial structure without regard to who the incumbents were. The mere fact that Schering knew who held affected positions does not cast doubt on its claim as to how its reorganization was carried out; indeed, it would be more surprising if Schering had been unaware of who held its management positions. Moreover, that Schering may have determined who to keep, transfer, or terminate after the shuffle by considering performance does not aid Turner in showing that the reason tendered for the elimination of his position was pretext. Turner also points to an interrogatory answer in which Schering admits that Turner’s age was discussed at three meetings in October and November of 1985. Given that Turner’s functions were divided among three much younger men, Turner claims this is probative of the pretextual nature of Schering’s reason for eliminating his job. He says it is especially unbelievable that his job post could become expendable only two years and some months after Happel and LaHood had assured him it was a viable position with growth potential. The referenced interrogatory answer states, inter alia, that Turner’s age was discussed at three meetings, that Scher-ing’s legal counsel was in attendance at each, and that the substance of the conversation at each of the meetings is protected by the attorney-client and attorney work-product privileges. In this context, the fact that Turner’s age was mentioned at three meetings does not support the inference of pretext that he seeks to draw. We also do not find probative of pretext the fact that LaHood told Turner his new position was viable two years prior to a company-wide reorganization affecting over 3000 jobs; there is simply no evidence that this reorganization was a massive subterfuge for age discrimination against Turner. In short, Turner’s failure to provide a jury with any rational basis from which to conclude that Schering’s reasons for eliminating his position were unworthy of credence is a fatal deficiency which sustains the grant of summary judgment for Schering on this claim. C. We reach a different conclusion concerning Schering’s decision to terminate Turner rather than offer him a new position. Schering, through its personnel director Richard Happel, asserts that Turner was qualified for only one position open after the reorganization, that of a packaging supervisor. However, Schering allegedly felt Turner’s poor performance as Manager of Distribution Services made him a bad choice for this job since it required direct supervision of 30 to 40 workers. While Schering’s explanation is plausible, on this record we believe it is one about which reasonable minds could differ. A rational jury could find this reason for not offering Turner the job pretextual in light of Turner’s markedly improved performance while working as Manager of Logistics Services. While in this position, Turner took steps to address the problems in his performance LaHood had identified by attending in-house courses in effective oral communication and project planning. That these efforts at self-improvement bore fruit is witnessed by the testimony of La-Hood himself. He rated Turner’s performance as good or very good in leadership, achieving results through others, appraisal and development of subordinates, and relationships with others. In short, as Manager of Logistics Services Turner met or exceeded Schering’s expectations in those very areas in which he had been deemed deficient as Manager of Distribution Services. Turner’s performance was not just strong in these areas, however. In early 1985, Turner was praised by a Schering Vice-President for his overall performance, particularly for achieving a savings for the company of $660,000 in 1984, and told to “[kjeep up the good work.” App. at 796. Turner’s Logistics Services group won praise for their excellent performance in 1984 and Turner consistently was rated as very good in the category of performance versus goals. Moreover, this high level of performance was achieved in a position three levels above the level of a packaging supervisor. While it is true that a packaging supervisor has direct supervision over a substantial number of employees, we believe a jury should be able to evaluate this aspect of the job in light of the fact that the packaging job required supervising only a fourth of the employees the Manager of Distribution Services supervised as well as the fact that the overall responsibilities of a packaging supervisor were not nearly as extensive as those of the Manager of Distribution Services. In short, we believe a rational jury could conclude that given Turner’s extensive experience with the company in responsible positions, his dedication to his career, and his marked improvement in performance over the preceding two and one-half years, Schering’s alleged reason for not offering him the Packaging Supervisor job is pretex-tual. A reasonable jury could conclude that he would have been made a packaging supervisor but for his age. As a result, he is entitled to a trial on this claim. D. Before leaving the ADEA, we must consider Turner’s claim that Schering willfully violated the ADEA, therefore triggering liability for liquidated damages. See 29 U.S.C. § 626(b). Having found no triable issue of fact under the ADEA, the district court naturally also granted summary judgment against Turner on this claim. To determine whether summary judgment on this claim was appropriate, we must decide whether Turner pointed to record evidence from which a rational jury could conclude that Schering’s decision to terminate him was outrageous or otherwise so reprehensible that the deterrence and punitive functions of liquidated damages are warranted. Dreyer v. Arco Chemical Co, Div. of Atl. Richfield, 801 F.2d 651, 658-59 (3d Cir.1986); see also Bartek v. Urban Redevelopment Auth. of Pittsburgh, 882 F.2d 739 (3d Cir.1989). The evidence necessary to support such a finding must go beyond that necessary to show that Schering intentionally discriminated against Turner because of his age; rather, there must be “some additional evidence of outrageous conduct” that distinguishes this from the ordinary, though still reprehensible, case of age discrimination. Id. In Dreyer, we noted that the availability of liquidated damages was dependent upon case-specific factors and suggested that “ ‘the trier of fact can properly consider [inter alia] the character of the defendant’s act, [and] the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause’ ” in determining whether an award was appropriate. Id. at 658 (quoting Restatement (Second) of Torts § 908(2)); see also Lockhart, 879 F.2d at 57-58. Though we disclaimed any intention of detailing those situations in which a trier of fact would be warranted in finding willfulness, we did say: In some cases, evidence that the employer had previously violated the ADEA might warrant imposition of liquidated damages to effectuate the deterrent purpose underlying the willfulness provision. In other cases, termination of an employee at a time that would deprive him or her of an imminent pension might show the “outrageousness” of conduct that would warrant double damages. Id. Turner attempts to show that this case falls within the two examples set forth in Dreyer by pointing out that Schering has violated the ADEA before and that his termination diminished his pension benefits. However, even taken together, these two facets of the record do not provide a sufficient basis under the Dreyer standard for an award of liquidated damages. The previous violation of the ADEA by Schering involved a different division from the one in which Turner was employed, and none of the Schering employees who participated in the decision to terminate Turner played a role in the Anastasio case. See Anastasio v. Schering Corp., 838 F.2d 701 (3d Cir.1988). There is no evidence that Schering failed to take remedial or prophylactic measures that may have been appropriate as a result of the situation reflected in Anastasio. A previous violation, without any aggravating factors, could not be enough to warrant an award for punitive damages or a company’s second violation would always warrant a punitive damage award. We find no support for such a rule in either the statute or the case law. The possibility that Turner may prove that he lost some pension benefits as a result of Schering’s decision to terminate him is also not enough to require trial on his claim for liquidated damages. At the time of Turner’s termination, his right to a Schering pension had already vested; thus, the financial effect of Schering’s actions was not to deprive Turner of his pension, but only to reduce the size of the pension he would otherwise have received. If an award of liquidated damages were available every time evidence is presented to show a diminution in a plaintiffs pension benefits as a result of a firing, the admittedly wavering line between ordinary cases of age discrimination and outrageous cases warranting liquidated damages awards would be wholly obliterated. V. “Section 510 of ERISA prohibits employer conduct taken against an employee who participates in a pension benefit plan for ‘the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.’ ” Gavalik v. Continental Can Co., 812 F.2d 834, 851 (3d Cir.) (quoting, 29 U.S.C. § 1140 (1982)), cert. denied, 484 U.S. 979, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987). To recover under § 510 the employee must show that the employer made a conscious decision to interfere with the employee’s attainment of pension eligibility or greater benefits. Id. at 852-53. A discharged employee need only show that the desire to reduce Turner’s pension benefits was a “determinative factor” in its decision to terminate him. Id. at 860. The employee may show this by circumstantial evidence. In Gavalik, we held that the allocation of the burdens of production and persuasion utilized in Title VII and ADEA cases is equally appropriate for cases brought under § 510. The employee has the burden of tendering evidence that constitutes a “prima facie” case. If such evidence is tendered, the employer has the burden of articulating a permissible reason for the adverse personnel action. Once there has been such an articulation, the employee has the burden of persuasion on the issue of whether an intent to interfere with rights secured under ERISA played a determinative role in the decision to take that action. The concept of a “prima facie” case is thus intended to measure how much the plaintiff must show before the employer will be forced to assume the burden of an active defense. Since information concerning the employer’s motivation is normally not readily available to the employee, this threshold requirement is not a stringent one. All that the plaintiff must show is that he (1) belongs to the protected class, (2) was qualified for the position involved, and (3) was discharged or denied employment under circumstances that provide some basis for believing that the prohibited intent was present. Dister v. Continental Group Inc., 859 F.2d 1108, 1115 (2d Cir Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. REED v. FARLEY, SUPERINTENDENT, INDIANA STATE PRISON, et al. No. 93-5418. Argued March 28, 1994 Decided June 20, 1994 Ginsburg, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and all but the final paragraph of Part IV, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined, and an opinion with respect to Part II and the final paragraph of Part IV, in which Rehnquist, C. J., and O’Connor, J., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined, post, p. 355. Blackmun, J., filed a dissenting opinion, in which Stevens, Kennedy, and Souter, JJ., joined, post, p. 359. Jerold S. Solovy argued the cause for petitioner. With him on the briefs were Barry Levenstam, Ellen R. Kordik, and Douglas A. Graham. Arend J. Abel, Deputy Attorney General of Indiana, argued the cause for respondents. With him on the brief were Pamela Carter, Attorney General, and Matthew R. Gutwein, Wayne E. Uhl, and Suzann Weber Lupton, Deputy Attorneys General. Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Bryson, and Richard H. Seamon filed a brief for the United States as amicus curiae urging affirmance. Justice Ginsburg announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and all but the final paragraph of Part IV, and an opinion with respect to Part II and the final paragraph of Part IV, in which The Chief Justice and Justice O’Con-nor join. The Interstate Agreement on Detainers Act (IAD), 18 U. S. C. App. § 2, is a compact among 48 States, the District of Columbia, and the Federal Government. It enables a participating State to gain custody of a prisoner incarcerated in another jurisdiction, in order to try him on criminal charges. Article IV(c) of the IAD provides that trial of a transferred prisoner “shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court,... the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” IAD Article V(c) states that when trial does not occur within the time prescribed, the charges shall be dismissed with prejudice. The petitioner in this case, Orrin Scott Reed, was transferred in April 1983 from a federal prison in Indiana to state custody pursuant to an IAD request made by Indiana officials. Reed was tried in October of that year, following postponements made and explained in his presence in open court. Reed’s petition raises the question whether a state prisoner, asserting a violation of IAD Article IV(c)’s 120-day limitation, may enforce that speedy trial prescription in a federal habeas corpus action under 28 U. S. C. § 2254. We hold that a state court’s failure to observe the 120-day rule of IAD Article IV(c) is not cognizable under §2254 when the defendant registered no objection to the trial date at the time it was set, and suffered no prejudice attributable to the delayed commencement. Accordingly, we affirm the judgment of the Court of Appeals. I In December 1982, while petitioner Reed was serving time in a Terre Haute, Indiana, federal prison, the State of Indiana charged him with theft and habitual offender status. Indiana authorities lodged a detainer against Reed and, on April 27, 1983, took custody of him. The 120-day rule of IAD Article IV(c) thus instructed that, absent any continuance, Reed’s trial was to commence on or before August 25, 1983. At two pretrial conferences, one on June 27, the other on August 1, the trial judge discussed with Reed (who chose to represent himself) and the prosecutor the number of days needed for the trial and the opening date. At the June 27 conference, the court set a July 18 deadline for submission of the many threshold motions Reed said he wished to file, and September 13 as the trial date. That trial date exceeded IAD Article IV(c)’s 120-day limit, but neither the prosecutor nor Reed called the IAD limit to the attention of the judge, and neither asked for a different trial date. Reed did indicate a preference for trial at a time when he would be out of jail on bond (or on his own recognizance); he informed the court that he would be released from federal custody two weeks before September 13, unless federal authorities revoked his “good days” credits, in which case he would be paroled on September 14. App. 39; see id., at 76. At the August 1 pretrial conference, Reed noted his imminent release from federal custody and asked the court to set bond. Id., at 76-79. In response, the court set bond at $25,000. Also, because of a calendar conflict, the court reset the trial date to September 19. Id., at 79-81. Reed inquired about witness subpoenas and requested books on procedure, but again, he said nothing at the conference to alert the judge to Article IV(c)’s 120-day limit, nor did he express any other objection to the September 19 trial date. Interspersed in Reed’s many written and oral pretrial motions are references to IAD provisions other than Article IV(c). See id., at 28-31, 44 (alleging illegality of transfer from federal to state custody without a pretransfer hearing); id., at 46 (asserting failure to provide hygienic care in violation of IAD Article V). Reed did refer to the IAD prescription on trial commencement in three of the written motions he filed during the 120-day period; indeed, one of these motions was filed on the very day of the August 1 pretrial conference. In none of the three motions, however, did Reed mention Article IV(c) or the September 13 trial date previously set. In contrast, on August 29, four days after the 120-day period expired, Reed presented a clear statement and citation. In a “Petition for Discharge,” he alleged that Indiana had failed to try him within 120 days of his transfer to state custody, and therefore had violated Article IV(c); consequently, he urged, the IAD mandated his immediate release. The trial judge denied the petition, explaining: “Today is the first day I was aware that there was a 120 day limitation on the Detainer Act. The Court made its setting and while there has been a request for moving the trial forward, there has not been any speedy trial request filed, nor has there been anything in the nature of an objection to the trial setting, but only an urging that it be done within the guidelines that have been set out.” Id., at 113-114. The morning trial was to commence, September 19, Reed filed a motion for continuance, saying he needed additional time for trial preparation. Id., at 128. A newspaper article published two days earlier had listed the names of persons called for jury duty and the 1954 to 1980 time frame of Reed’s alleged prior felony convictions. Concerned that the article might jeopardize the fairness of the trial, the judge offered Reed three options: (1) start the trial on schedule; (2) postpone it for one week; or (3) continue it to a late October date. Reed chose the third option, id., at 134, 142, and the trial began on October 18; the jury convicted Reed of theft, and found him a habitual offender. He received a sentence of 4 years in prison on the theft conviction, and 30 years on the habitual offender conviction, the terms to run consecutively. The Indiana Supreme Court affirmed the convictions. Reed v. State, 491 N. E. 2d 182 (1986). Concerning Reed’s objection that the trial commenced after the 120-day period specified in IAD Article IV(c), the Indiana Supreme Court stressed the timing of Reed’s pleas in court: Reed had vigorously urged at the August 1 pretrial conference other alleged IAD violations (particularly, his asserted right to a hearing in advance of the federal transfer to state custody), but he did not then object to the trial date. Id., at 184-185; see App. 67-74. “The relevant times when [Reed] should have objected were on June 27, 1983, the date the trial was set, and August 1,1983, the date the trial was reset,” the Indiana Supreme Court concluded. 491 N. E. 2d, at 185. Reed unsuccessfully sought postconviction relief in the Indiana courts, and then petitioned under 28 U. S. C. § 2254 for a federal writ of habeas corpus. The District Court denied the petition. Examining the record, that court concluded that “a significant amount of the delay of trial is attributable to the many motions filed... by [Reed] or filed on [Reed’s] behalf”; delay chargeable to Reed, the court held, was excludable from the 120-day period. Reed v. Clark, Civ. No. S 90-226 (ND Ind., Sept. 21, 1990), App. 195-196. The Court of Appeals for the Seventh Circuit affirmed. Reed v. Clark, 984 F. 2d 209 (1993). Preliminarily, the Court of Appeals recognized that the IAD, although state law, is also a “law of the United States” within the meaning of § 2254(a). Id., at 210. Nonetheless, that court held collateral relief unavailable because Reed’s IAD speedy trial arguments and remedial contentions had been considered and rejected by the Indiana courts. Stone v. Powell, 428 U. S. 465 (1976), the Court of Appeals concluded, “establishes the proper framework for evaluating claims under the IAD.” 984 F. 2d, at 213. In Stone, this Court held that the exclusionary rule, devised to promote police respect for the Fourth Amendment rights of suspects, should not be applied on collateral review unless the state court failed to consider the defendant’s arguments. We granted certiorari, 510 U. S. 963 (1993), to resolve a conflict among the Courts of Appeals on the availability of habeas review of IAD speedy trial claims. II A state prisoner may obtain federal habeas corpus relief “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States” 28 U. S. C. § 2254(a) (emphasis added). Respondent Indiana initially argues that the IAD is a voluntary interstate agreement, not a “la[w]... of the United States” within the meaning of § 2254(a). Our precedent, however, has settled that issue: While the IAD is indeed state law, it is a law of the United States as well. See Carchman v. Nash, 473 U. S. 716, 719 (1985) (§2254 case, holding that the IAD “is a congressionally sanctioned interstate compact within the Compact Clause, U. S. Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction”); Cuyler v. Adams, 449 U. S. 433,438-442 (1981) (“congressional consent transforms an interstate compact... into a law of the United States”). The Court of Appeals recognized that the IAD is both a law of Indiana and a federal statute. 984 F. 2d, at 210. Adopting Stone v. Powell, 428 U. S. 465 (1976), as its framework, however, that court held relief under § 2254 unavailable to Reed. 984 F. 2d, at 213. Stone holds that a federal court may not, under § 2254, consider a claim that evidence from an unconstitutional search was introduced at a state prisoner’s trial if the prisoner had “an opportunity for full and fair litigation of [the] claim in the state courts.” 428 U. S., at 469. Our opinion in Stone concentrated on “the nature and purpose of the Fourth Amendment exclusionary rule.” Id., at 481. The Court emphasized that its decision confined the exclusionary rule, not the scope of §2254 generally: “Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right,... and we emphasize the minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding.” Id., at 495, n. 37 (emphasis in original). We have “repeatedly declined to extend the rule in Stone beyond its original bounds.” Withrow v. Williams, 507 U. S. 680, 687 (1993) (holding that Stone does not apply to a state prisoner’s claim that his conviction rests on statements obtained in violation of the safeguards set out in Miranda v. Arizona, 384 U. S. 436 (1966)). Because precedent already in place suffices to resolve Reed’s case, we do not adopt the Seventh Circuit’s Stone-based rationale. We have stated that habeas review is available to check violations of federal laws when the error qualifies as “a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U. S. 424, 428 (1962); accord, United States v. Timmreck, 441 U. S. 780, 783 (1979); Davis v. United States, 417 U. S. 333, 346 (1974). The IAD's purpose — providing a nationally uniform means of transferring prisoners between jurisdictions — can be effectuated only by nationally uniform interpretation. See 984 F. 2d, at 214 (Ripple, J., dissenting from denial of rehearing in banc). Therefore, the argument that the compact would be undermined if a State’s courts resisted steadfast enforcement, with total insulation from §2254 review, is not without force. Cf. Stone v. Powell, 428 U. S., at 526 (Brennan, J., dissenting) (institutional constraints preclude Supreme Court from overseeing adequately whether state courts have properly applied federal law). This case, however, gives us no cause to consider whether we would confront an omission of the kind contemplated in Hill, Timmreck, or Davis, if a state court, presented with a timely request to set a trial date within the IAD’s 120-day period, nonetheless refused to comply with Article IV(c). When a defendant obscures Article IV(e)’s time prescription and avoids clear objection until the clock has run, cause for collateral review scarcely exists. An unwitting judicial slip of the kind involved here ranks with the nonconstitutional lapses we have held not cognizable in a postconviction proceeding. In Hill, for example, a federal prisoner sought collateral relief, under 28 U. S. C. § 2255, based on the trial court’s failure at sentencing to afford him an opportunity to make a statement and present information in mitigation of punishment, as required by Rule 32(a) of the Federal Rules of Criminal Procedure. The petitioner, however, had not sought to assert his Rule 32(a) rights at the time of sentencing, a point we stressed: “[W]e are not dealing here with a case where the defendant was affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed. Nor is it suggested that in imposing the sentence the District Judge was either misinformed or uninformed as to any relevant circumstances. Indeed, there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak.” 368 U. S., at 429. “[W]hen all that is shown is a failure to comply with the formal requirements” of Rule 32(a), we held, “collateral relief is not available.” Ibid. But we left open the question whether “[collateral] relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances.” Ibid. Hill controlled our decision in United States v. Timmreck, 441 U. S. 780 (1979), where a federal prisoner sought collateral review, under § 2255, to set aside a conviction based on a guilty plea. The complainant in Timmreck alleged that the judge who accepted his plea failed to inform him, in violation of Rule 11 of the Federal Rules of Criminal Procedure, that he faced a mandatory postincarceration special parole term. We rejected the collateral attack, observing that the violation of Rule 11 was technical, and did not “resul[t] in a ‘complete miscarriage of justice’ or in a proceeding ‘inconsistent with the rudimentary demands of fair procedure.’” Id., at 784, quoting Hill, 368 U. S., at 428. “As in Hill,” we found it unnecessary to consider whether “[postconviction] relief would be available if a violation of Rule 11 occurred in the context of other aggravating circumstances.” 441 U. S., at 784-785. Reed’s case similarly lacks “aggravating circumstances” rendering “ ‘the need for the remedy afforded by the writ of habeas corpus... apparent.’ ” Hill, 368 U. S., at 428, quoting Bowen v. Johnston, 306 U. S. 19, 27 (1939). Reed had two clear chances to alert the trial judge in open court if he indeed wanted his trial to start on or before August 25,1993. He let both opportunities pass by. At the pretrial hearings at which the trial date was set and rescheduled, on June 27 and August 1, Reed not only failed to mention the 120-day limit; he indicated a preference for holding the trial after his release from federal imprisonment, which was due to occur after the 120 days expired. See supra, at 342. Then, on the 124th day, when it was no longer possible to meet Article IV(c)’s deadline, Reed produced his meticulously precise “Petition for Discharge.” See supra, at 344, and n. 4. As the Court of Appeals observed, had Reed objected to the trial date on June 27 or August 1 “instead of burying his demand in a flood of other documents, the [trial] court could have complied with the IAD’s requirements.” 984 F. 2d, at 209-210. The Court of Appeals further elaborated: “During the pretrial conference of August 1,1983, Reed presented several arguments based on the IAD, including claims that the federal government should have held a hearing before turning him over to the state and that his treatment in Indiana fell short of the state’s obligations under Art. V(d) and (h). Reed did not mention the fact that the date set for trial would fall outside the 120 days allowed by Art. IV(c). Courts often require litigants to flag important issues orally rather than bury vital (and easily addressed) problems in reams of paper, as Reed did. E. g., Fed. R. Crim. P. 30 (requiring a distinct objection to jury instructions); cf. Fed. R. Crim. P. 12(b) (a district judge may require motions to be made orally). It would not have been difficult for the judge to advance the date of the trial or make a finding on the record of good cause, either of which would have satisfied Art. IV(c). Because the subject never came up, however, the trial judge overlooked the problem.” Id., at 213. Reed regards the Court of Appeals’ description of his litigation conduct, even if true, as irrelevant. He maintains that the IAD dictates the result we must reach, for Article V(c) directs dismissal with prejudice when Article IV(c)’s time limit has passed. Article V(c) instructs only that “the appropriate court of the jurisdiction where the indictment... has been pending” — i e., the original trial court — shall dismiss the charges if trial does not commence within the time Article IV(c) prescribes. Article V(c) does not address the discrete question whether relief for violations of the IAD’s speedy trial provisions is available on collateral review. That matter is governed instead by the principles and precedent generally controlling availability of the great writ. See id., at 212. Referring to those guides, and particularly the Hill and Timmreck decisions, we conclude that a state court’s failure to observe the 120-day rule of IAD Article IV(c) is not cognizable under §2254 when the defendant registered no objection to the trial date at the time it was set, and suffered no prejudice attributable to the delayed commencement. Ill Reed argues that he is entitled to habeas relief because the IAD’s speedy trial provision “effectuates a constitutional right,” the Sixth Amendment guarantee of a speedy trial. Brief for Petitioner 26. Accordingly, he maintains, the alleged IAD violation should be treated as a constitutional violation or as a “fundamental defect” satisfying the Hill standard, not as a mere technical error. Reed’s argument is insubstantial for, as he concedes, his constitutional right to a speedy trial was in no way violated. See Tr. of Oral Arg. 7. Reed’s trial commenced 54 days after the 120-day period expired. He does not suggest that his ability to present a defense was prejudiced by the delay. Nor could he plausibly make such a claim. Indeed, asserting a need for more time to prepare for a trial that would be “fair and meaningful,” App. 128, Reed himself requested a delay beyond the scheduled September 19 opening. A showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause, and that necessary ingredient is entirely missing here. See Barker v. Wingo, 407 U. S. 514, 530 (1972) (four factors figure in the determination of Sixth Amendment speedy trial claims; one of the four is “prejudice to the defendant”). IV More strenuously, Reed argues that Hill and similar decisions establish a standard for federal prisoners seeking relief under 28 U. S. C. § 2255, not for state prisoners seeking relief under §2254. But it is scarcely doubted that, at least where mere statutory violations are at issue, “§2255 was intended to mirror §2254 in operative effect.” Davis v. United States, 417 U. S. 333, 344 (1974). Far from suggesting that the Hill standard is inapplicable to § 2254 cases, our decisions assume that Hill controls collateral review — under both §§2254 and 2255 — when a federal statute, but not the Constitution, is the basis for the postconviction attack. For example, in Stone v. Powell, a § 2254 case, we recalled “the established rule with respect to nonconstitutional claims” as follows: “[N]onconstitutional claims... can be raised on collateral review only if the alleged error constituted a ‘ “fundamental defect which inherently results in a complete miscarriage of justice.” ’ ” 428 U. S., at 477, n. 10, quoting Davis, 417 U. S., at 346, quoting Hill, 368 U. S., at 428. Reed nevertheless suggests that we invoked the fundamental defect standard in Hill and Timmreck for this sole reason: “So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal.” Sunal v. Large, 332 U. S. 174, 178 (1947) (emphasis added). The same “general rule,” however, applies to § 2254. Where the petitioner — whether a state or federal prisoner — failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes “cause” for the waiver and shows “actual prejudice resulting from the alleged... violation.” Wainwright v. Sykes, 433 U. S. 72, 84 (1977); id., at 87. We see no reason to afford habeas review to a state prisoner like Reed, who let a time clock rim without alerting the trial court, yet deny collateral review to a federal prisoner similarly situated. See Francis v. Henderson, 425 U. S. 536, 542 (1976) (“ ‘Plainly the interest in finality is the same with regard to both federal and state prisoners.... There is no reason to.... give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants.’ ”) (quoting Kaufman v. United States, 394 U. S. 217, 228 (1969)); see also United States v. Frady, 456 U. S. 152, 167-168 (1982) (collateral review of procedurally defaulted claims is subject to same “cause and actual prejudice” standard, whether the claim is brought by a state prisoner under § 2254 or a federal prisoner under § 2255). Reed contends that the scope of review should be broader under § 2254 than under § 2255, because state prisoners, unlike their federal counterparts, have “had no meaningful opportunity to have a federal court consider any federal claim.” Brief for Petitioner 34. But concern that state courts might be hostile to the federal law here at stake is muted by two considerations. First, we have reserved the question whether federal habeas review is available to check violations of the IAD’s speedy trial prescriptions when the state court disregards timely pleas for their application. See supra, at 349. Second, the IAD is both federal law.and the law of Indiana. Ind. Code §35-33-10-4 (1993). As the Court of Appeals noted: “We have no more reason to suppose that the Supreme Court of Indiana seeks to undermine the IAD than we have to suppose that it seeks to undermine any other law of Indiana.” 984 F. 2d, at 211. * * * For the reasons stated, the judgment of the Court of Appeals is Affirmed. Justice Scalia, with whom Justice Thomas joins, concurring in part and concurring in the judgment. I join all the Court’s opinion except Part II, and the last paragraph of Part IV (which incorporates some of the analysis of Part II). I thus agree that the “fundamental defect” test of Hill v. United States, 368 U. S. 424, 428 (1962), is the appropriate standard for evaluating alleged statutory violations under both §§2254 and 2255, see ante, at 352-354, but I disagree with what seems to me (in Part II) too parsimonious an application of that standard. I This Court has long applied equitable limitations to narrow the broad sweep of federal habeas jurisdiction. See Withrow v. Williams, 507 U. S. 680, 715-721 (1993) (Scalia, J., concurring in part and dissenting in part). One class of those limitations consists of substantive restrictions upon the type of claim that will be entertained. Hill, for example, holds that the claim of a federal statutory violation will not be reviewed unless it alleges “a fundamental defect which inherently results in a complete miscarriage of justice [o]r an omission inconsistent with the rudimentary demands of fair procedure.” 368 U. S., at 428. Most statutory violations, at least when they do not occur “in the context of other aggravating circumstances,” are simply not important enough to invoke the extraordinary habeas jurisdiction. Id., at 429. See also United States v. Timmreck, 441 U. S. 780, 783-785 (1979). Although Justice Ginsburg concludes that an unobjected-to violation of thé Interstate Agreement on Detainers Act (IAD), 18 U. S. C. App. § 2, is not “ ‘a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure,’ ” she declines to decide whether that judgment would be altered “if a state court, presented with a timely request to set a trial date within the IAD’s 120-day period, nonetheless refused to comply with Article IV(c),” ante, at 348, 349. To avoid the latter question, she conducts an analysis of how petitioner waived his IAD rights. See ante, at 350-351. The issue thus avoided is not a constitutional one, and the avoiding of it (when the answer is so obvious) may invite a misunderstanding of the Hill test. The class of procedural rights that are not guaranteed by the Constitution (which includes the Due Process Clauses), but that nonetheless are inherently necessary to avoid “a complete miscarriage of justice,” or numbered among “the rudimentary demands of fair procedure,” is no doubt a small one, if it is indeed not a null set. The guarantee of trial within 120 days of interjurisdictional transfer unless good cause is shown — a provision with no application to prisoners involved with only a single jurisdiction or incarcerated in one of the two States that do not participate in the voluntary IAD compact — simply cannot be among that select class of statutory rights. As for Hill and Timmreck’s reservation of the question whether habeas would be available “in the context of other aggravating circumstances,” that seems to me clearly a reference to circumstances that cause additional prejudice to the defendant, thereby elevating the error to a fundamental defect or a denial of rudimentary procedural requirements— not a reference to circumstances that make the trial judge’s behavior more willful or egregious. I thus think it wrong to suggest that if only petitioner had not waived his IAD speedy trial rights by failing to assert them in a timely fashion, “aggravating circumstances” might exist. See ante, at 349, 350-351. That says, in effect, that “aggravating circumstances” which can entitle a mere statutory violation to habeas review may consist of the mere fact that the statutory violation was not waived. Surely that sucks the life out of Hill Nor do I accept Justice Ginsburg’s suggestion that an interest in uniform interpretation of the IAD might counsel in favor of habeas review in a nonwaiver situation. See ante, at 348-349. I see no reason why this Court’s direct review of state and federal decisions will not suffice for that purpose, as it does in most other contexts. Cf. Cuyler v. Adams, 449 U. S. 433, 442 (1981). More importantly, however, federal habeas jurisdiction was not created with the intent, nor should we seek to give it the effect, of altering the fundamental disposition that this Court, and not individual federal district judges, has appellate jurisdiction, as to federal questions, over the supreme courts of the States. If there was ever a technical rule, the IAD’s 120-day limit is one. I think we produce confusion by declining to state the obvious: that violation of that technicality, intentional or unintentional, neither produces nor is analogous to (1) lack of jurisdiction of the convicting court, (2) constitutional violation, or (3) miscarriage of justice or denial of rudimentary procedures. It is no basis for federal habeas relief. II In addition to substantive limitations on the equitable exercise of habeas jurisdiction, the Court has imposed procedural restrictions. For example, a habeas claim cognizable under § 2255 (the correlative of § 2254 for federal prisoners), such as a constitutional claim, will not be heard if it was procedurally defaulted below, absent a showing of cause and actual prejudice. See United States v. Frady, 456 U. S. 152, 167-168 (1982). And claims will ordinarily not be entertained under § 2255 that have already been rejected on direct review. See Kaufman v. United States, 394 U. S. 217, 227, n. 8 (1969); see also Withrow, 507 U. S., at 720-721 (Scalia, J., concurring in part and dissenting in part) (collecting cases showing that lower courts have uniformly followed the Kaufman dictum). Together, these two rules mean that “a prior opportunity for full and fair litigation is normally dispositive of a federal prisoner’s habeas claim.” 507 U. S., at 721. Although this procedural limitation has not been raised as a defense in the present case, I note my view that, at least where mere statutory violations are at issue, a prior opportunity for full and fair litigation precludes a state-prisoner petition no less than a federal-prisoner petition. As the Court today reaffirms, “ ‘§ 2255 was intended to mirror § 2254 in operative effect.’” Ante, at 353, quoting Davis v. United States, 417 U. S. 333, 344 (1974). Cf. Frady, supra, at 166. Otherwise a prisoner, like petitioner, transferred from federal to state prison under the IAD would have three chances to raise his claim (state direct, state habeas, and § 2254) while a prisoner transferred from state to federal prison under the IAD would have only one. Since the present petitioner raised his IAD claim on direct appeal in the Indiana courts and on state habeas review, his federal habeas claim could have been rejected on the ground that the writ ordinarily will not be used to readjudicate fully litigated statutory claims. Justice Blackmun, with whom Justice Stevens, Justice Kennedy, and Justice Souter join, dissenting. The federal habeas corpus statute allows a state prisoner to challenge his conviction on the ground that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254(a). The Court acknowledges, as it must, that the Interstate Agreement on Detainers (IAD) is a “la[w]... of the United States” under this statute. See Carchman v. Nash, 473 U. S. 716, 719 (1985); Cuyler v. Adams, 449 U. S. 433, 438-442 (1981). In addition, respondents concede that a defendant tried in clear violation of the IAD’s 120-day limit would be held in custody in violation of a law of the United States. Tr. of Oral Arg. 37. Nevertheless, the Court appears to conclude that a violation of the IAD is simply not serious enough to warrant collateral relief, at least where the defendant fails to invoke his IAD rights according to the precise rules the Court announces for the first time today. The Court purports to resolve this case by relying on “precedent already in place,” ante, at 348, referring to “principles and precedent generally controlling availability of the great writ,” ante, at 352. Our precedent, on its face, does not reach nearly so far, and its extension to this case is unwarranted under general habeas corpus principles. Most seriously, the Court disregards Congress’ unambiguous judgment about the severity of, and the necessary remedy for, a violation of the IAD time limits. I respectfully dissent. I The Court purports to resolve this issue by relying on the Hill-Timmreck line of cases. See Hill v. United States, 368 U. S. 424 (1962); Davis v. United States, 417 U. S. 333 (1974); United States v. Timmreck, 441 U. S. 780 (1979); see also Sunal v. Large, 332 U. S. 174 (1947); United States v. Frady, 456 U. S. 152 (1982). Despite the professed narrowness of the Court’s ultimate holding, however, its decision reflects certain assumptions about the nature of habeas review of state court judgments that do not withstand close analysis. 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_appel1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. JEFFERSON-PILOT CORPORATION AND SUBSIDIARIES, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. No. 92-2054. United States Court of Appeals, Fourth Circuit. Argued March 1, 1993. Decided June 14, 1993. Bruce Raleigh Ellisen, Tax Div., U.S. Dept, of Justice, Washington, DC, argued (James A Bruton, Acting Asst. Atty. Gen., Gary R. Allen, Richard Farber, Bridget M. Rowan, on brief), for respondent-appellant. Dean Francis Chatlain, Vice President and Tax Counsel, Jefferson-Pilot Corp., Greensboro, NC, argued (Peter H. Winslow, Scribner, Hall & Thompson, Washington, DC, on brief), for petitioner-appellee. Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and VOORHEES, Chief United States District Judge for the Western District of North Carolina, sitting by designation. OPINION BUTZNER, Senior Circuit Judge: The principal question in this petition for review is whether the taxpayer, Jefferson-Pilot Corporation, can amortize the costs of acquiring Federal Communication Commission (FCC) broadcast licenses. The answer depends on whether an FCC license is a “franchise” within the meaning of § 1253 of the Internal Revenue Code, 26 U.S.C. § 1253. The Commissioner of Internal Revenue appeals the Tax Court’s decision holding that three radio broadcasting licenses transferred to the taxpayer’s subsidiary, Jefferson-Pilot Communications Co., are public franchises. Applying § 1253(d)(2)(A), the Tax Court permitted the taxpayer to amortize over ten years the cost of the broadcast licenses, which its subsidiary obtained as part of its purchase of three radio stations in 1974. We find no error in the Tax Court’s analysis. The definition of “franchise” is sufficiently broad to include licenses issued by the FCC. We affirm for reasons adequately stated by the Tax Court in Jefferson Pilot Corp. v. Commissioner, 98 T.C. 435, 1992 WL 73091 (1992). I The taxpayer is a holding company, and with its subsidiaries it files a consolidated tax return. One of its subsidiaries, Jefferson-Pilot Communications Co. (J-P Communications), agreed in 1973 to purchase three radio stations from the Pacific & Southern Co. In order to operate radio stations lawfully, it is necessary to obtain a license from the FCC. 47 U.S.C. § 301. The FCC also requires that it approve any transfer of broadcast licenses. 47 U.S.C. § 310(d). J-P Communications filed an application with the FCC for assignment of Pacific & Southern’s licenses to Jefferson-Pilot. In 1974, the FCC approved the assignment of the licenses, subject to certain conditions and payment of a transfer fee. The Commissioner contends that the term “franchise” in § 1253 is ambiguous, thus necessitating resort to the statute’s legislative history. According to the Commissioner, this history indicates that Congress intended § 1253 to apply only to commercial franchises, not government grants of licenses. The Commissioner points out that § 1253 was enacted to deal with controversies over whether the transfer of a commercial franchise was a sale or a license. See S.Rep. No. 91-552 at 208-11. The Commissioner also argues that an FCC license is not an agreement within the terms of § 1253 because the FCC’s decision to grant the license does not arise from bargaining or for consideration. The taxpayer contends that § 1253 permits it to amortize over ten years the portion of the radio stations’ cost which was attributable to the FCC licenses. II Section 1253 of the Internal Revenue Code provides that the “transfer of a franchise, trademark, or trade name shall not be treated as a sale or exchange of a capital asset if the transferor retains any significant power, right, or continuing interest with respect to the subject matter of the franchise, trademark, or trade name.” 26 U.S.C. § 1253(a). The statute defines “franchise” for the purposes of § 1253 as “including] an agreement which gives one of the parties to the agreement the right to distribute, sell, or provide goods, services, or facilities, within a specified area.” 26 U.S.C. § 1253(b)(1). First, a word of explanation is appropriate on a point which is not an issue in this proceeding. Section 1253(a) speaks of a “transfer” of a franchise in which the “trans-feror” retains any significant power or continuing interest- in the subject of the franchise. Pacific & Southern Co. was the immediate transferor of the broadcast licenses to J-P Communications, but it retained no interest in the licenses. Pacific & Southern’s lack of a retained interest, however, is of no moment. For the purpose of § 1253 the FCC is treated as the “transferor.” See Rev.Rul. 88-24, 1988-1 C.B. 306. Moreover, it retained both power and a continuing interest in J-P Communications’ acquisition and use of the broadcast licenses. Jefferson-Pilot, 98 T.C. at 440, 447-50. The Commissioner does not contest these aspects of the Tax Court’s decision. Nor does the Commissioner dispute the valuation of the licenses. The critical question, then, is whether an FCC license is a franchise within the meaning of § 1253. In concert with the Tax Court, we conclude that § 1253 is not ambiguous. “Franchise,” it is true, has several meanings ranging from the right to vote to the right to do business conferred by the government. See, e.g., Webster’s Third New International Dictionary 902 (1986); Black’s Law Dictionary 658 (6th ed. 1990). Nevertheless, Congress eliminated ambiguity by writing its own definition of “franchise” for the application of § 1253. The language of the statutory definition is plain. Consequently, our sole function is to apply it according to its terms. See West Virginia University Hospitals v. Casey, 499 U.S. 83,-, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991). An FCC broadcast license satisfies the definition of franchise set forth in § 1253(b)(1). It is an agreement. J-P Communications agreed to operate the radio stations in the public interest according to FCC regulations in exchange for the FCC’s consent to the transfer of the licenses from Pacific & Southern. The licenses give J-P Communications the right to provide broadcast services within specified areas that are delineated by'particular broadcast frequencies. Section 1253(e) excepts the transfer of professional sport franchises from the other provisions of § 1253. This specific exception lends weight to the taxpayer’s position that the FCC licenses are not excepted from the plain language of the statute. As the Tax Court recognized, “[i]f Congress had wanted to exclude other franchises that fell within the definition contained in section 1253(b)(1), we believe that it would have so provided.” Jefferson-Pilot, 98 T.C. at 442. The Commissioner thoroughly canvassed the legislative history, but she found no express limitation of § 1253 to commercial franchises. The most that she could point to was Congress’s concern about the confusion over the taxation of commercial franchises. But this is too slim a reed to support the Commissioner’s argument that § 1253 pertains only to commercial franchises. The plain language of the statute precludes such a narrow interpretation. Having satisfied all the requirements of § 1253, the taxpayer is entitled to amortize the cost of the licenses. The decision of the Tax Court is AFFIRMED. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. CLARK COUNTY SCHOOL DISTRICT v. BREEDEN No. 00-866. Decided April 23, 2001 Pee Curiam. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. §2000e-3(a), it is unlawful “for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” In 1997, respondent filed a §2000e-3(a) retaliation claim against petitioner Clark County School District. The claim as eventually amended alleged that petitioner had taken two separate adverse employment actions against her in response to two different protected activities in which she had engaged. The District Court granted summary judgment to petitioner, No. CV-S-97-365-DWH(RJJ) (D. Nev., Feb. 9, 1999), but a panel of the Court of Appeals for the Ninth Circuit reversed over the dissent of Judge Fernandez, No. 99-15522,2000 WL 991821 (July 19, 2000) (per curiam) (unpublished), judgt. order reported at 232 F. 3d 893. We grant the writ of certio-rari and reverse. On October 21, 1994, respondent’s male supervisor met with respondent and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” Brief in Opposition 3. At the meeting respondent’s supervisor read the comment aloud, looked at respondent and stated, “I don’t know what that means.” Ibid. The other employee then said, “Well, I’ll tell you later,” and both men chuckled. Ibid. Respondent later complained about the comment to the offending employee, to Assistant Superintendent George Ann Rice, the employee’s supervisor, and to another assistant superintendent of petitioner. Her first claim of retaliation asserts that she was punished for these complaints. The Court of Appeals for the Ninth Circuit has applied §2000e-3(a) to protect employee “opposition]” not just to practices that are actually “made... unlawful” by Title VII, but also to practices that the employee could reasonably believe were unlawful. 2000 WL 991821, at 1 (stating that respondent’s opposition was protected “if she had a reasonable, good faith belief that the incident involving the sexually explicit remark constituted unlawful sexual harassment”); Trent v. Valley Electric Assn. Inc., 41 F. 3d 524, 526 (CA9 1994). We have no occasion to rule on the propriety of this interpretation, because even assuming it is correct, no one could reasonably believe that the incident recounted above violated Title VII. Title VII forbids actions taken on the basis of sex that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” 42 U. S. C. § 2000e-2(a)(l). Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (some internal quotation marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (Only harassing conduct that is “severe or pervasive” can produce a “constructive alteratio[n] in the terms or conditions of employment”); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (Title VII “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment”). Workplace conduct is not measured in isolation; instead, “whether an environment is sufficiently hostile or abusive” must be judged “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."' Faragher v. Boca Raton, supra, at 787-788 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1998)). Hence, “[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.' ” Faragher v. Boca Raton, supra, at 788 (citation and internal quotation marks omitted). No reasonable person could have believed that the single incident recounted above violated Title VII’s standard. The ordinary terms and conditions of respondent’s job required her to review the sexually explicit statement in the course of screening job applicants. Her co-workers who participated in the hiring process were subject to the same requirement, and indeed, in the District Court respondent “conceded that it did not bother or upset her” to read the statement in the file. App. to Pet. for Cert. 15 (District Court opinion). Her supervisor’s comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker’s responding comment; and the chuckling of both are at worst an “isolated inciden[t]” that cannot remotely be considered “extremely serious,” as our eases require, Faragher v. Boca Raton, supra, at 788. The holding of the Court of Appeals to the contrary must be reversed. Besides claiming that she was punished for complaining to petitioner’s personnel about the alleged sexual harassment, respondent also claimed that she was punished for filing charges against petitioner with the Nevada Equal Rights Commission and the Equal Employment Opportunity Commission (EEOC) and for filing the present suit. Respondent filed her lawsuit on April 1,1997; on April 10,1997, respondent’s supervisor, Assistant Superintendent Rice, “mentioned to Allin Chandler, Executive Director of plaintiff’s union, that she was contemplating transferring plaintiff to the position of Director of Professional Development Education,” App. to Pet. for Cert. 11-12 (District Court opinion); and this transfer was “carried through” in May, Brief in Opposition 8. In order to show, as her defense against summary judgment required, the existence of a causal connection between her protected activities and the transfer, respondent “relie[d] wholly on the temporal proximity of the filing of her complaint on April 1,1997 and Rice’s statement to plaintiff’s union representative on April 10,1997 that she was considering transferring plaintiff to the [new] position.” App. to Pet. for Cert. 21-22 (District Court opinion). The District Court, however, found that respondent did not serve petitioner with the summons and complaint until April 11,1997, one day after Rice had made the statement, and Rice filed an affidavit stating that she did not become aware of the lawsuit until after April 11, a claim that respondent did not challenge. Hence, the court concluded, respondent “ha[d] not shown that any causal connection exists between her protected activities and the adverse employment decision.” Id., at 21. The Court of Appeals reversed, relying on two facts: The EEOC had issued a right-to-sue letter to respondent three months before Rice announced she was contemplating the transfer, and the actual transfer occurred one month after Rice learned of respondent’s suit. 2000 WL 991821, at 3. The latter fact is immaterial in light of the fact that petitioner coneededly was contemplating the transfer before it learned of the suit. Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality. As for the right-to-sue letter: Respondent did not rely on that letter in the District Court and did not mention it in her opening brief on appeal. Her demonstration of causality all along had rested upon the connection between the transfer and the filing of her lawsuit — to which connection the letter was irrelevant. When, however, petitioner’s answering brief in the Court of Appeals demonstrated conclusively the lack of causation between the filing of respondent’s lawsuit and Rice’s decision, respondent mentioned the letter for the first time in her reply brief, Reply Brief in No. 99-15522 (CA9) pp. 9-10. The Ninth Circuit’s opinion did not adopt respondent’s utterly implausible suggestion that the EEOC’s issuance of a right-to-sue letter — an action in which the employee takes no part — is a protected activity of the employee, see 42 U. S. C. §2000e-3(a). Rather, the opinion suggests that the letter provided petitioner with its first notice of respondent’s charge before the EEOC, and hence allowed the inference that the transfer proposal made three months later was petitioner’s reaction to the charge. See 2000 WL 991821, at *3. This will not do. First, there is no indication that Rice even knew about the right-to-sue letter when she proposed transferring respondent. And second, if one presumes she knew about it, one must also presume that she (or her predecessor) knew almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed. (The complaint had been filed on August 23, 1995, and both Title VII and its implementing regulations require that an employer be given notice within 10 days of filing, 42 U. S. C. §§ 2000e-5(b), (e)(1); 29 CFR §1601.14 (2000).) The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be “very close,” O’Neal v. Ferguson Constr. Co., 237 F. 3d 1248, 1253 (CA10 2001). See, e. g., Richmond v. Oneok, Inc., 120 F. 3d 205, 209 (CA10 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F. 2d 1168, 1174-1175 (CA7 1992) (4-month period insufficient). Action taken (as here) 20 months later suggests, by itself, no causality at all. In short, neither the grounds that respondent presented to the District Court, nor the ground she added on appeal, nor even the ground the Court of Appeals developed on its own, sufficed to establish a dispute substantial enough to withstand the motion for summary judgment. The District Court’s granting of that motion was correct. The judgment of the Court of Appeals is reversed. It is so ordered. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES v. WHITECOTTON et al. No. 94-372. Argued February 28, 1995 Decided April 18, 1995 Souter, J., delivered the opinion for a unanimous Court. O’Connor, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 276. Irving L. Gornstein argued the cause for petitioner. With him on the briefs were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Barbara C. Biddle, Richard A. Olderman, and Karen R Hewitt. Robert T. Moxley argued the cause for respondents. With him on the brief were Richard Gage, Peter H. Meyers, and John S. Capper TV. Stephan E. Lawton and Anne M. Dellinger filed a brief for the American Academy of Pediatrics as amicus curiae urging reversal. Curtis R. Webb filed a brief for Dissatisfied Parents Together et al. as amici curiae urging affirmance. Justice Souter delivered the opinion of the Court. The question in this case is whether a claimant who shows that she experienced symptoms of an injury after receiving a vaccination makes out a prima facie case for compensation under the National Childhood Vaccine Injury Act of 1986, 100 Stat. 3755, 42 U. S. C. §300aa-1 et seq. (1988 ed. and Supp. V), where the evidence fails to indicate that she had no symptoms of that injury before the vaccination. We hold that the claimant does not make out a case for compensation. I For injuries and deaths traceable to vaccinations, the Act establishes a scheme of recovery designed to work faster and with greater ease than the civil tort system. H. R. Rep. No. 99-908, pp. 3-7 (1986). Special masters in the Court of Federal Claims hear vaccine-related complaints, 42 U. S. C. §300aa-12(c) (1988 ed., Supp. V), which they adjudicate informally, §300aa-12(d)(2), within strict time limits, §300aa-12(d)(3)(A), subject to similarly expeditious review, § 300aa-12(e)(2). A claimant alleging that more than $1,000 in damages resulted from a vaccination after the Act’s effective date in 1988 must exhaust the Act’s procedures and refuse to accept the resulting judgment before filing any de novo civil action in state or federal court. 42 U. S. C. § 300aa-11(a) (1988 ed. and Supp. V). The streamlining does not stop with the mechanics of litigation, but goes even to substantive standards of proof. While a claimant may establish prima facie entitlement to compensation by introducing proof of actual causation, §300aa-11(c)(l)(C)(ii), she can reach the same result by meeting the requirements of what the Act calls the Vaccine Injury Table. The table lists the vaccines covered under the Act, together with particular injuries or conditions associated with each one. 42 U. S. C. § 300aa-14 (1988 ed., Supp. V). A claimant who meets certain other conditions not relevant here makes out a prima facie case by showing that she (or someone for whom she brings a claim) “sustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table in association with [a] vaccine ... or died from the administration of such vaccine, and the first symptom or manifestation of the onset or of the significant aggravation of any such illness, disability, injury, or condition or the death occurred within the time period after vaccine administration set forth in the Vaccine Injury Table.” 42 U. S. C. §300aa-11(c)(1)(C)(i). Thus, the rule of prima facie proof turns the old maxim on its head by providing that if the post hoc event happens fast, ergo propter hoc. The Secretary of Health and Human Services may rebut a prima facie case by proving that the injury or death was in fact caused by “factors unrelated to the administration of the vaccine . . . § 300aa-13(a)(1)(B). If the Secretary fails to rebut, the claimant is entitled to compensation. 42 U. S. C. § 300aa-13(a)(1) (1988 ed. and Supp. V). Respondents, Margaret Whitecotton and her parents, filed a .claim under the Act for injuries Margaret allegedly sustained as a result of vaccination against diphtheria, pertussis, and tetanus (or DPT) on August 18, 1975, when she was nearly four months old. They alleged that Margaret (whom we will refer to as claimant) had suffered encephalopathy after the DPT vaccination, and they relied on the table scheme to make out a prima facie case. The Act defines encephalopathy as “any significant acquired abnormality of, or injury to, or impairment of function of the brain,” 42 U. S. C. § 300aa-14(b)(3)(A), and lists the condition on the Vaccine Injury Table in association with the DPT vaccine. Under the Act, a claimant who does not prove actual causation must show that “the first symptom or manifestation of the onset or of the significant aggravation” of encephalopathy occurred within three days of a DPT vaccination in order to make out a prima facie right to compensation. § 300aa-11(c)(1)(C)(i); 42 U. S. C. § 300aa-14(a) (1988 ed., Supp. V). The Special Master found that claimant had suffered clonic seizures on the evening after her vaccination and again the following morning, App. to Pet. for Cert. 24a, 27a, and accepted those seizures as symptoms of encephalopathy. He also found, however, that by the time claimant received the vaccination she was “clearly microcephalic” (meaning that she had a head size more than two standard deviations below the mean for a girl her age) and that her microcephaly was a symptom or evidence of encephalopathy that existed before the vaccination. Id., at 32a-33a. Accordingly, the Master concluded that the first symptom or manifestation of the onset of claimant’s encephalopathy had occurred before the vaccination and the ensuing 3-day period provided for in the table. Id., at 34a. The Master then considered whether the series of seizures was “the first symptom or manifestation ... of [a] significant aggravation” of the claimant’s encephalopathy, 42 U. S. C. § 300aa-11(c)(1)(C)(i), and again decided that it was not. The Act defines “significant aggravation” as “any change for the worse in a preexisting condition which results in markedly greater disability, pain, or illness accompanied by substantial deterioration of health.” § 300aa-33(4). The Master found that “[t]here is nothing to distinguish this case from what would reasonably have been expected considering [claimant’s] microcephaly. . . . [T]here was nothing that occurred in temporal relationship to the DPT vaccination which indicates that it is more likely than not that the vaccine permanently aggravated her condition. . . . [T]he seizures did not continue and there was no dramatic turn for the worse in her condition .... Thus, there is no basis for implicating the vaccine as the cause of any aspect of [claimant’s] present condition.” App. to Pet. for Cert. 41a-48a. Because he found that claimant had failed to satisfy the table requirements, and had not tried to prove actual causation, the Master denied her compensation for failure to make out a prima facie case. The Court of Federal Claims found the Master’s decision neither arbitrary nor otherwise unlawful, see 42 U. S. C. § 300aa-12(e)(2) (1988 ed., Supp. V), and affirmed. The Court of Appeals for the Federal Circuit then reversed, holding that a claimant satisfies the table requirements for the “first symptom or manifestation of the onset” of an injury whenever she shows that any symptom or manifestation of a listed condition occurred within the time period after vaccination specified in the table, even if there was evidence of the condition before the vaccination. Because claimant here showed symptoms of encephalopathy during the 3-day period after her DPT vaccination, the Court of Appeals concluded for that reason alone that she had made out a prima facie entitlement to recovery. 17 F. 3d 374, 376-377 (1994). The Court of Appeals went on to say that the Secretary had failed to rebut this prima facie case because she had not shown that claimant’s encephalopathy was caused by “factors unrelated to the administration of the vaccine,” 42 U. S. C. § 300aa-13(a)(1)(B). The Court of Appeals relied on the provision that a “facto[r] unrelated” cannot include an “idiopathic” condition, § 300aa-13(a)(2)(A), which the court read to mean that even when the Secretary can point to a specific factor, unrelated to the vaccine, as the source of a claimant’s injury, she does not defeat a prima facie case when the cause of the identified factor is itself unknown. Taking the Secretary to have relied on claimant’s microcephaly as the unrelated factor (or as associated with it), the court ruled the Secretary’s evidence insufficient on the ground that the cause of microcephaly is unknown. 17 F. 3d, at 377-378. We granted certiorari to address the Court of Appeals’s construction of the Act’s requirements for making and rebutting a prima facie case. 513 U. S. 959 (1994). Because we hold that the court erroneously construed the provisions defining a prima facie case under the Act, we reverse without reaching the adequacy of the Secretary’s rebuttal. II The Court of Appeals declared that nowhere does the Act “expressly state” that a claimant relying on the table to establish a prima facie case for compensation must show “that the child sustained no injury prior to administration of the vaccine,” that is, that the first symptom of the injury occurred after vaccination. 17 F. 3d, at 376. This statement simply does not square with the plain language of the statute. In laying out the elements of a prima facie case, the Act provides that a claimant relying on the table (and not alleging significant aggravation) must show that “the first symptom or manifestation of the onset... of [her table illness] . . . occurred within the time period after vaccine administration set forth in the Vaccine Injury Table.” §300aa-ll(c)(l)(C)(i). If a symptom or manifestation of a table injury has occurred before a claimant’s vaccination, a symptom or manifestation after the vaccination cannot be the first, or signal the injury’s onset. There cannot be two first symptoms or onsets of the same injury. Thus, a demonstration that the claimant experienced symptoms of an injury during the table period, while necessary, is insufficient to make out a prima facie case. The claimant must also show that no evidence of the injury appeared before the vaccination. In coming to the contrary conclusion, the Court of Appeals relied on language in the table, which contains the heading, “Time period for first symptom or manifestation of onset . . . after vaccine administration.” 42 U. S. C. § 300aa-14(a) (1988 ed., Supp. V). The Court of Appeals saw a “significant” distinction, 17 F. 3d, at 376, between this language and that of 42 U. S. C. § 300aa-11(c)(1)(C)(i), which is set forth above. We do not. The key to understanding the heading is the word “onset.” Since the symptom or manifestation occurring after the vaccination must be evidence of the table injury’s onset, an injury manifested before the vaccination could qualify only on the theory that it could have two onsets, one before the vaccination, one after it. But it cannot: one injury, one onset. Indeed, even if the language of the heading did conflict with the text of § 300aa-11(c)(1)(C)(i), the latter would prevail, since the table heading was obviously meant to be a short form of the text preceding it. The Court of Appeals sought to shore up the contrary conclusion with two further arguments. As the court read the Act, Congress “expressly made the absence of preexisting injury an element of the prima facie case” for residual seizure disorder (another table injury), 17 F. 3d, at 376; thus, the court reasoned, Congress had implicitly rejected any need to negate the pre-existence of other injuries like encephalopathy. This argument rests on a misreading of the language in question. The statutory notes explaining the table provide that a claimant “may be considered to have suffered a residual seizure disorder if [she] did not suffer a seizure or convulsion unaccompanied by fever or accompanied by a fever of less than 102 degrees Fahrenheit before the first seizure or convulsion after the administration of the vaccine involved . . . .” § 300aa-14(b)(2). But this is not the language that requires a claimant alleging a seizure disorder to demonstrate the absence of pre-existing symptoms. This provision specifies instead that certain types of seizures (those accompanied by a high fever) may not be considered symptoms of residual seizure disorder, and, so, do not preclude a prima facie case even when a claimant suffered them before vaccination. The language carries no implication about a claimant’s burden generally and does nothing to undermine Congress’s global provision that a claimant who has actually suffered symptoms of a listed injury before vaccination cannot make out a prima facie case of the injury’s onset after vaccination. Finally, we cannot accept the Court of Appeals’s argument that because the causal “factors unrelated” on which the Secretary may rely to defeat a prima facie case can include occurrences before vaccination, see § 300aa-13(a)(2)(B), such occurrences cannot bar the establishment of a prima facie case in the first instance. The “factors unrelated” provision is wholly independent of the first-symptom and onset provisions, serving the distinct purpose of allowing the Secretary to defeat a claim even when an injury has not manifested itself before vaccination. It does not relieve a claimant of the clear statutory requirements for making out a prima facie case. Ill The judgment of the Court of Appeals for the Federal Circuit is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The Court of Appeals’s language can also be read as casting doubt on the Special Master’s conclusion that claimant’s microcephaly evidenced a pre-existing encephalopathy. We express no view as to the validity of that conclusion. The Secretary has recently, issued new regulations that may affect the Court of Appeals’s definition of an idiopathic condition in future cases. These regulations apply only to petitions for compensation filed after March 10, 1995, and accordingly have no application to the present case. 60 Fed. Reg. 7678-7696 (1995). 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_treat	G	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. STEELMET, INC., et al., Plaintiff-Appellee, Cross-Appellant, Jarrell R. Jackson, Intervening Plaintiff, v. CARIBE TOWING CORPORATION, et al., Defendants-Appellees. MARINE EXPLORATION COMPANY, INC., Third-Party Plaintiff-Appellee, v. FRANK B. HALL AND COMPANY, American Marine Underwriters, Third-Party Defendants Calvert Fire Insurance Company, Third Party Defendant-Appellant, Cross-Appellee. ALABAMA-PUERTO RICO BARGE LINES, INC., Plaintiff-Appellee, v. CALVERT FIRE INSURANCE COMPANY, Defendant-Appellant. Nos. 86-5937, 86-5939. United States Court of Appeals, Eleventh Circuit. April 18, 1988. C. Robert Murray, Jr., Canning & Murray, P.A., Richard R. McCormack, Miami, Fla., for Calvert. John B. Culp, Jr., Jacksonville, Fla., for Alliance, et al. Edward F. Gerace, Tampa, Fla., for Car-ibe. John W. Keller, III, Miami, Fla., for Alabama-Puerto Rico Barge Lines, Inc. Before HILL, Circuit Judge, HENDERSON , Senior Circuit Judge, and VINING , District Judge. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation. HILL, Circuit Judge: The long voyage of the tug CARIBE and barge ATC-21 is now nearly at an end. In this appeal, insurers challenge the judgment against them for the loss of the tug, barge, and cargo. In turn, the plaintiffs cross-appeal challenging the amount of the award. We affirm in part, reverse in part, and remand to the district court for final calculation of the awards. I. BACKGROUND The background of this case is set forth fully in Steelmet, Inc. v. Caribe Towing Corp., 747 F.2d 689 (11th Cir.1984) (Steel- met I). To summarize briefly, Steelmet, Inc. entered into a charter party with Car-ibe Towing Corporation for the shipment of steel bars. The cargo was to be carried by the tug CARIBE and the barge ATC-21. Marine Exploration Company (MEC) then became beneficial owner of the tug and barge and assignee of the charter party. The vessel hit rough seas in the Caribbean, and the barge sank with the cargo. Steelmet brought suit in the district court against Caribe and MEC and, pursuant to the charter agreement, the matter was referred to arbitration. The arbitrators found that the vessel was unseawor-thy when it left Tampa and issued an award in favor of Steelmet. Steelmet then moved to enforce the award in the district court. In addition, MEC filed a third party complaint against its insurers, American Marine Underwriters (AMU) and Calvert Fire Insurance Company, under its hull and protection and indemnity (P & I) policies. Steelmet also sought to file a direct action against the insurers. The district court entered judgment on the arbitration award on November 24,1982 in favor of Steelmet. The court also held that MEC and Steelmet were precluded from relitigating the issues decided in the arbitration. Because the arbitration found that MEC was aware of facts regarding the vessel’s unseaworthiness, the court held that the insurance coverage, which was obtained just prior to the start of the voyage, was voided for failure to disclose this information to the insurers. In addition, the court awarded against MEC and in favor of Jarrell Jackson, an intervening complainant, the amount of Jackson’s mortgage on the tug, which had been seized and sold by United States Marshals. In the first appeal, this court held that the insurers could not offensively estop Steelmet and MEC on the issues relating to insurance coverage because the burden of proof was placed on the insurers in the district court action and on the shipper in the arbitration. The court remanded the case for trial on the MEC’s third party action and Steelmet’s direct action against the insurers. The first appeal did not alter the judgment entered against MEC and Caribe on the arbitration award. On remand the district court found that the record was complete. The only new evidence accepted was the conviction of Captain Rosenbrock, a key witness for the insurers, under 18 U.S.C. § 1542 for making a false statement in a passport application. On May 27, 1986 the district court issued its decision finding the insurers liable. It concluded that neither MEC nor Caribe was aware of any material information which they were obliged to disclose to the insurers. With the burden of proof now on the insurers, the court found, contrary to the arbitrators’ decision, that the loss was caused by a peril of the sea. On October 16, 1986 the district court entered judgment granting the following: Steelmet is awarded $876,277.38 ($501,-807.38 invoice value plus interest) against Calvert on the protection and indemnity policy. Alliance Assurance Company, Ltd., sub-rogee of Steelmet, is awarded $876,-277.38 against Calvert on the protection and indemnity policy. MEC is awarded $876,277.38 plus attorneys’ fees in the amount of $50,000 against Calvert on the protection and indemnity policy. MEC is awarded $176,500 against Calvert on the hull policy on the tug ($200,-000 policy less $23,500 proceeds from Marshals’ sale) plus interest of $132,904, but subject to the judgment lien in favor of Jackson in the amount of $79,126.33. MEC is awarded $200,000 on the hull policy on the barge plus interest of $149,-250, but subject to the claim of Alabama-Puerto Rico Barge Line, Inc. as loss payee. Alabama’s right to recover is established by a judgment entered simultaneously. Calvert appeals from the judgment challenging several aspects of the district court’s decision and award. Alliance, Steel-met’s subrogee, cross-appeals challenging the amount of the award. II. DISCUSSION A. The Law of the Case Calvert first attempts to rely upon the district court’s finding that the loss was caused by a peril of the sea to assert that MEC, its insured, is not liable to Steel-met. This argument fails to recognize that MEC’s liability was established when the district court entered judgment in favor of Steelmet on the arbitration award in 1982. As noted above, that judgment was unaffected by this court’s decision in Steelmet I. The district court’s subsequent finding, based upon an appropriate placement of the burden of proof, that the loss was caused by a peril of the sea relates only to Calvert’s asserted defense that the policy was voided for nondisclosure. The finding does not affect MEC’s liability to Steelmet. Calvert also attempts to reargue the issues of estoppel which were resolved in Steelmet I. It argues that the arbitrators’ findings and the positions taken in the arbitration preclude MEC and Steelmet from taking the positions they now take regarding the vessel’s seaworthiness and the carriers’ knowledge of it. This issue is governed by the law of the case. In Steel-met I the parties fully argued the preclusion issue, including the question of judicial estoppel, and this court held that Steelmet and MEC were entitled to try their actions anew against the insurers. Steelmet I, 747 F.2d at 694. That holding authorized the parties’ adoption of the positions they now assert, and it contemplated the possibility that the district court’s findings might differ from the arbitrators’ findings. That is the law of the case by which we are bound. See Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir.1984). B. Failure to Disclose Calvert challenges the district court’s finding that no official of MEC or Caribe was aware of any facts material to the vessel’s seaworthiness that were not disclosed. This is a factual issue and we may not overturn the district court’s findings on this question unless they are clearly erroneous. See Fed.R.Civ.P. 52(a). We conclude that those findings were not clearly erroneous. The main issue in this case is whether the “boom and bubble” incident which allegedly occurred during the loading on November 22, 1976, was material to the vessel’s seaworthiness, and therefore should have been disclosed. Calvert contends that the incident was very significant, that it affected the vessel’s seaworthiness, and that at the very least it should have been revealed to the insurers prior to the issuance of coverage. In support of this contention, Calvert relies on the description of the boom and bubble incident given by Captain Rosenbrock. According to Rosenbrock, at some point during the loading of the steel cargo on November 22 a loud boom occurred. He claims that he then saw large air bubbles surfacing from underneath the barge. Ro-senbrock describes the event as having considerable significance. He claims that he made two separate requests to Ron Zapet-is, president of Caribe Towing, for divers to inspect the underside of the barge. He also claims that he noted in his log book that he thought the barge had either hit bottom or broken her back. Based upon Rosenbrock’s description of the event, Calvert argues that the incident should have been disclosed. It is clear that the district court did not credit Rosenbrock’s testimony regarding the incident. We believe that this was with good reason. First, shortly after the sinking of the barge Rosenbrock gave two written statements in which he described the loading and the voyage, but in which he did not mention the boom and bubble incident. Those statements reflect Rosenbrock’s belief that the barge left Tampa in normal condition and that the sinking was caused by rough seas. Second, while Rosenbrock claims that he requested divers to inspect the barge, Ron Zapetis testified that he made no such request. Third, the log books where Rosenbrock claims to have made an entry regarding the incident were not produced for the court. And finally, Rosenbrock was convicted of a crime involving false statements, and he testified that he had been convicted of forgery. Given this background, one would be hard put to credit the late report of Rosen-brock concerning the boom and bubble incident and its significance. On appeal, we certainly cannot fault the district judge for his having discounted it almost entirely. The record suggests that Rosenbrock simply changed his story when he perceived that he was to be blamed for the loss. Given this concern, along with the benefit of hindsight, the boom and bubble incident apparently took on enhanced significance in Rosenbrock’ mind over time. Once Rosenbrock’s testimony is discounted, there is little or no reason to believe that anything occurred during the loading which should have been disclosed. There is, in fact, substantial evidence to support the conclusion that nothing unusual occurred during the loading, that the vessel set sail in normal condition, and that the loss was caused by rough seas. Thus, we hold that the district court’s finding that no material facts were kept from the insurers was not clearly erroneous. C. The Protection and Indemnity Limit Under MEC’s protection and indemnity policy, the barge ATC-21 was insured up to $200,000 and the tug CARIBE was insured up to $500,000. Calvert argues that its liability under the P & I policy is limited to $200,000 because it was the barge that sank with the cargo and because the arbitrators found the barge to be unseaworthy. We disagree. Calvert’s liability to MEC and Alliance is, of course, rooted in the insurance policies. Therefore, the starting point for determining the applicable P & I limit is with the language of the P & I policy itself. See National Union Fire Ins. Co. of Pa. v. Carib Aviation, Inc., 759 F.2d 873, 875-76 (11th Cir.1985). Clause A of the policy states: “this Company hereby undertakes to pay up to the amount hereby insured such sums as the Assured, in respect of the vessels listed on the ‘Schedule of Vessels,’ shall have become legally liable to pay....” The question for the court then is whether MEC’s liability to Steelmet is “in respect of” the barge and tug together or simply the barge. To determine the answer to this question we must look to the source of MEC’s liability to Steelmet: the arbitration award on which the district court entered judgment. The arbitrators stated the following: Clause 37 [of the charter party] defines the word ‘vessel’ to mean both the Barge and Tug. Therefore, when applying COGSA to the specifics of this dispute, the Panel must necessarily view the combination of Barge and Tug as a single entity for the determination of seaworthiness and the measurement of Owners’ due diligence effort. (R2-158-13). The arbitrators’ award makes it clear that MEC’s liability arises out of a decision that treated the tug and barge as one unit for purposes of assessing MEC’s behavior and issuing an award. The arbitrators’ treatment of the barge and tug combination is supported by common sense and the law. The Supreme Court has said the following: The bill of lading declares that the cargo was shipped on board the barge. But it was to be transported; and this the barge alone was incapable of doing, since she had no power of self-movement. It results, necessarily, that it was within the contemplation of the contract that the transportation would be accomplished by combining the barge with a vessel having such power. ... This court and other federal courts repeatedly have held that such a combination [of barge and tug] constitutes, in Law, one vessel. Sacremento Navig. Co. v. Salz, 273 U.S. 326, 328-30, 47 S.Ct. 368, 369-70, 71 L.Ed. 663 (1927) (original emphasis). It appears that the loss in the present case would never have occurred if the barge and tug, together, had not set sail from Tampa. Given that the arbitration award is the source of MEC’s liability and that the arbitrators viewed the tug and barge combination as one vessel, we conclude that MEC’s liability arose “in respect of” both the tug and barge. The P & I policy provides $200,000 of coverage for the barge and $500,000 of coverage for the tug. Since MEC’s liability is “in respect of” both the barge and tug, the total coverage under the P & I policy is $700,000 for this loss. D. Alabama as Loss Payee The district court entered judgment in favor of Alabama-Puerto Rico Barge Lines, Inc. (Alabama) under the hull policy on the barge because Alabama was listed as loss payee on the policy. Calvert argues that Alabama may not recover as loss payee under the barge’s hull policy because MEC failed to disclose that the barge was having trouble in rough seas at the time Alabama was added as loss payee. We disagree with Calvert’s contention that the failure to make such a disclosure affects the validity of a change of the loss payee. The law requires only that the insured inform the insurer of its intent to change the payee in a manner consistent with policy or statutory requirements. See 5 G. Couch, Insurance §§ 28:51-28:58 (Rev. ed. 1984). Calvert does not contend that the correct procedures were not followed, and we presume that they were. We conclude then that the addition of Alabama as loss payee was proper and effective. E. Hull Policy on the Tug The district court also entered an award in favor of MEC under the hull policy on the tug, subject to the mortgage claim of Jarrell Jackson. Calvert contends that the loss of the tug was not caused by a covered peril and that the award must be reversed. We agree. The tug was arrested and sold by United States Marshals for $23,500 under circumstances which are not entirely clear from the record. What is clear, however, is that this was not a peril against which the tug was insured. The policy listed the following covered perils: “the waters named herein, fire, lightning, explosion, earthquake, assailing thieves, jettisons, barratry of the master and mariners and all other like perils_” As MEC concedes, U.S. Marshals are not listed as a covered peril. Clearly this court is not authorized to rewrite the policy to extend coverage to this loss. See National Union Fire, 759 F.2d at 875-76 (court is not free to rewrite insurance policy or add meaning that is not there). Therefore, the judgment against Calvert under the hull policy on the tug is reversed. F. The Awards On cross-appeal, Alliance contends that the district court wrongly disregarded the 1982 judgment in calculating the awards, and Calvert contends that it is not liable for interest above the P & I policy limit. We find that there is merit in both claims. Prior to the first appeal, the district court entered judgment on November 24, 1982 against MEC and Caribe Towing in the amount of $938,129.19. That judgment was based upon the arbitrators’ award and it was not affected by this court’s opinion in Steelmet I. On remand the district court did not alter that judgment and, in fact, noted in its decision of May 27, 1986 that the original judgment remained valid following the appeal. We conclude that that award was proper, that it was unaffected by the actions against the insurers, and that post-judgment interest has been accumulating on that award from November 24, 1982 pursuant to 28 U.S.C. § 1961. See Gele v. Wilson, 616 F.2d 146, 148 (5th Cir.1980) (post-judgment interest provision applicable in admiralty as in other civil litigation). Following the remand in Steelmet I the sole issue before the district court was the insurers’ liability. The court held that the P & I policy was not voided for failure to disclose and that Calvert was liable under the P & I policy to MEC, Steelmet, and Alliance as subrogee of Steelmet. In calculating the award under the P & I policy, however, the district court disregarded the 1982 judgment. The court calculated the award by using the invoice value of the lost cargo ($501,807.38) and adding prejudgment interest from the date of loss on December 8, 1976. This was error. Calvert’s liability under the P & I policy arises from the judgment entered against its insured, MEC. That is the nature of liability insurance. The starting point then for calculating Calvert’s liability under the P & I policy is the 1982 judgment rendered against MEC. That judgment was for $933,129.19, including $415,647.05 in interest. Thus, if the P & I policy had no relevant limit, Calvert’s liability would be equal to the total amount of the 1982 judgment, plus interest. As determined above, however, Calvert’s liability under the P & I policy was limited to $700,000 for this event. We must, therefore, evaluate the effect of this limit on the amount of the award. As noted above, the district court’s award against Calvert, as well as its original award against MEC, included prejudgment interest. The law is clear that prejudgment interest should generally be awarded in admiralty cases absent peculiar circumstances, and that the decision of whether to make the award is left to the trial court’s discretion. Chung, Yong II v. Overseas Navigation Co., 774 F.2d 1043, 1056-57 (11th Cir.1985), cert. denied, 475 U.S. 147, 106 S.Ct. 1802, 90 L.Ed.2d 346 (1986); Miller Industries v. Caterpillar Tractor Co., 733 F.2d 813, 822 (11th Cir.1984). While the existence of a genuine dispute is one “peculiar circumstance” that may justify denying prejudgment interest, see Parker Towing Co. v. Yazoo River Towing, Inc., 794 F.2d 591, 594 (11th Cir.1986), the district judge in this case was most familiar with the parties and issues, and we cannot say that his award of prejudgment interest, as a general matter, was an abuse of discretion. With respect to the prejudgment interest included in the 1982 judgment against MEC, however, we conclude that Calvert may not be held liable for this under the P & I policy to the extent that the judgment exceeded the $700,000 policy limit. In the P & I policy, Calvert agreed to the following: “to pay up to the amount hereby insured such sums as the Assured ... shall have become legally liable to pay....” A liability policy such as this implicitly contemplates that a period of time may pass between the loss and the point at which the insured is held liable for the loss. The policy insures against liability not loss, and it insures only against liability up to the policy limit. We find nothing in the policy to indicate that Calvert undertook to pay interest above its limit. Thus, Calvert’s liability under the P & I policy as of November 24, 1982, the date on which MEC became “legally liable to pay,” was limited to $700,000. See Ryan Walsh Stevedoring Co. v. James Marine Services, Inc., 792 F.2d 489, 493 (5th Cir.1986) (“A marine insurer is not liable for interest in excess of its policy limits unless language in the policy so provides.”); Alcoa Steamship Co., Inc. v. Charles Ferran & Co., Inc., 443 F.2d 250, 255 (5th Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 94 (1971) (“The case law in non-marine policies is generally consistent in disallowing interest in excess of the dollar policy limits unless the policy contains language which provides for interest.”); Beck v. Kelly, 323 So.2d 667, 668 (Fla.App.1975) (insurer liable for judgment in excess of policy limit only where it exhibits bad faith in handling the defense or claim). It is a distinct question, however, as to whether Calvert is liable for interest accumulated on the $700,000 after the date of the 1982 judgment. We conclude that it is liable for that interest. Under Florida law, a liability insurers’ obligation to pay under a liability policy arises when the insured is held liable. See Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471, 473 (Fla.1977); Allstate Ins. Co. v. Warren, 125 So.2d 886, 889 (Fla.App.1961). In Stuyvesant, 342 So.2d at 473, the Supreme Court of Florida held that the verdict in a trial involving the insureds “brought into effect the duty of each liability insurer to pay what its insured owed.” While that decision involved an interpretation of the “liability insurance” statutory provision rather than the “marine protection and indemnity insurance” provision, the pertinent language of the provisions is the same. Compare Fla.St. § 624.605(l)(b) with Fla.St. § 624.607(l)(b). Both provisions describe insurance “against legal liability.” Thus, we conclude that Calvert’s obligation to pay arose on November 24, 1982, when MEC was held liable. Given that its obligation to pay arose in 1982, Calvert cannot escape paying interest on its $700,000 obligation after that date. The policy limit does not excuse Calvert from paying interest on that obligation. Were it otherwise, an insurer would have no incentive to promptly fulfil its obligation to pay so long as the policy limit had been reached. While an insurer is free to contend that it is not liable under the policy, as Calvert has done for several years, the insurer must pay the cost of the delay in the form of interest. This interest is simply compensation for the use of funds which Calvert was obligated to pay as of November 24, 1982. See Chung, Yong II, 774 F.2d at 1057. Thus, on remand, the final award against Calvert under the P & I policy should be $700,000 plus interest on that amount from November 24, 1982. Calvert does not specifically challenge the award of $50,000 in attorney’s fees to MEC. We find that that award was proper and it is affirmed. As discussed above, the judgment in favor of Alabama on the hull policy on the barge was proper. Moreover, it is clear that Calvert is liable for interest on the $200,000 policy amount because its obligation to pay arose at the time of the loss, rather than at the point when MEC was held liable. We have held that the judgment in favor of MEC under the hull policy on the tug was error and it is reversed. Jackson’s mortgage on the tug, however, is not in dispute and it is unaffected by this opinion. The insured, MEC, has also moved this court for an award of attorney’s fees on appeal pursuant to Fla.Stat.Ann. § 627.428. This statute is applicable in federal court, see Blasser Bros., Inc. v. Northern Pan-American Line, 628 F.2d 376, 386 (5th Cir.1980), and an insured is entitled to an award of fees even where both parties obtain some relief in the appellate court. See Great Southwest Fire Ins. Co. v. DeWitt, 458 So.2d 398, 400 (Fla.App.1984). We conclude that MEC is entitled to recover a portion of its appellate fees under Florida law. We therefore “instruct the trial court to take evidence and fashion an equitable award of appellate fees....” DeWitt, 458 So.2d at 400. The district court should, of course, take into consideration in fashioning an award the partial success of Calvert in this appeal. III. CONCLUSION For the reasons stated above, the judgment of the district court is affirmed in part and reversed in part. We remand only for final calculation of the awards consistent with this opinion. AFFIRMED in part; REVERSED in part; and REMANDED. . Calvert asserts that the standard of review should be somewhat less deferential because the evidence is largely documentary. We disagree: “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). Moreover, Rule 52(a) clearly states that ”[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous. ..." . In addition to the boom and bubble incident, Calvert argues that the results of an inspection by the National Cargo Bureau which took place on November 21, 1976 should have been disclosed. While the district court did not specifically address this matter, it is clear that the survey was not material to the barge’s seaworthiness. The surveyor testified that his survey was limited to a visual inspection of the cargo hold, and that it had no bearing on the barge’s seaworthiness. The district court’s unstated conclusion that this inspection was not material to the risks assumed was not clearly erroneous. . The court in Steelmet I, 747 F.2d at 695-96, declined to resolve the conflict between the general rule of marine insurance requiring full disclosure and a line of cases indicating that the rule applies only to hull policies and not to P & I policies unless the failure to disclose amounts to fraud or gross negligence. Because we uphold the district court’s finding that MEC did not fail to disclose any material fact it is not necessary to resolve the conflict in this case. Under either rule there was no breach of the duty to disclose because there was nothing to disclose. . While the law is clear that a failure to disclose material facts at the time the insurance attaches will void the policy, see Gulfstream Cargo, Ltd. v. Reliance Ins. Co., 409 F.2d 974, 983 (5th Cir.1969), the insurance did not attach here when Alabama was added as loss payee. . Calvert also contends that the barge was un-seaworthy when Alabama was added as loss payee, and that MEC therefore breached its warranty of seaworthiness. This contention, however, relies upon the false premise that a seaworthy vessel cannot encounter trouble or sink. In the action against the insurers, the district court specifically found that the barge sank due to a peril of the sea, and not because it was unseaworthy. Thus, the fact that the barge was encountering serious difficulty in rough seas when Alabama was added as loss payee does not indicate that MEC breached its warranty of seaworthiness. . MEC suggests that the award should be upheld as an element of the damages caused by Calvert's failure to defend MEC against Steelmet. MEC claims that the seizure and sale would not have occurred if Calvert had promptly taken up the defense. It is clear, however, that the district court granted the award based upon the hull policy, and we decline to speculate on appeal as to whether Calvert's failure to defend was the cause of the seizure. The district court specifically dealt with Calvert’s failure to defend by awarding MEC attorneys' fees, and we find no reason to enhance that award on appeal. . Calvert argues that Alliance is not entitled to rely on the judgment entered on November 24, 1982 in favor of Steelmet because Alliance was not named in the judgment. Since Alliance formally ratified the commencement of the action pursuant to Fed.R.Civ.P. 17(a) in 1981, however, this argument is without merit. Calvert’s counsel conceded that Alliance was the real party in interest, and the ratification has "the same effect as if the action had been commenced in the name of the real party in interest.” Fed.R.Civ.P. 17(a). . The judgment assumes, of course, that only one party may recover this award from Calvert under the P & I policy. . The applicability of Florida law is not in dispute: "admiralty courts will generally look to appropriate state law in determining questions involving a marine insurance contract.” Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174 (11th Cir.1985). The parties agree that Florida law is the "appropriate” state law. . Calvert is not liable for interest on the entire $933,129.19 judgment entered against MEC, but only on the $700,000 which it was obligated to pay. An insurer is liable for interest on the entire judgment, regardless of the policy limit, only where the language in the policy specifies that the insurer will pay "all interest accruing after entry of judgment until the company has paid....” United States Automobile Ass'n v. Russom, 241 F.2d 296, 303 (5th Cir.1957); Allegheny Airlines, Inc. v. Forth Corp., 663 F.2d 751, 855-56 (7th Cir.1981). The P & I policy here did not include such language. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". GOGGIN v. BYRAM. No. 12020. United States Court of Appeals Ninth Circuit. Feb. 21, 1949. Rehearing Denied March 23, 1949. Frank C. Weller and Russell B. Seymour, both of Los Angeles, Cal., for appellant. Harold W. Kennedy, County Counsel and Andrew O. Porter, Deputy County Counsel, Los Angeles County, both of Los Angeles, Cal., for appellee. Before MATHEWS, HEALY and BONE, Circuit Judges. PIEALY, Circuit Judge. On January 27, 1947, A. Moody & Co., Inc., petitioned for an arrangement under § 322 of the Bankruptcy Act, 11 U.S.C.A. § 722, and an order was made continuing the debtor in possession with permission to operate its business. On March 14, 1947, appellant Goggin was appointed receiver with like powers. Seven days later there was an adjudication of bankruptcy and Goggin became trustee with authority to operate the business. The bankrupt was a manufacturer of mattresses. A part of its factory premises was under lease to a field warehouse company, and a substantial portion of its stock, namely mattresses and material for the manufacture thereof, had been placed in the possession of the field warehouseman. Warehouse receipts against this property had been issued prior to the initiation of the proceeding, and the receipts had been pledged by the bankrupt to secure an indebtedness owing by it. The balance of the bankrupt’s goods, of like character with those in the field warehouse, was unpledged, and the free merchandise was sold by the trustee on April 12, 1947 for about $27,000. On April 4, 1947 the trustee filed a verified statement with the assessor of Los Angeles County showing the property owned, possessed or controlled by the bankrupt as of the first Monday in March, 1947. In this statement the entire quantity of merchandise owned by the bankrupt, both pledged and unpledged, was listed as one item valued at $126,950. The county assessor made a single assessment of the property at the value placed on it by the trustee. On May 31, 1947, appellee (the county tax collector) filed his claim for $9,979.86, as the amount of the tax upon the property, and petitioned for an order directing its payment. The referee, on the trustee’s objection, ordered the claim reduced by the amount of $5,389.90 on the theory, apparently, that the first proviso of § 64, sub. a (4) of the Act, presently to be examined, requires that course. The balance of the tax was allowed as an expense of administration. On June 20, 1947, the trustee petitioned for leave to abandon the pledged property as an asset of the estate, and authority to do so was granted two months later. It may be taken as established that at no time did the bankrupt estate have any equity of value in the pledged goods; also that on or after the inception of the proceeding neither the debtor, the receiver, nor the trustee had actual possession thereof except as to a part, of the assessed value of about $1,000, which was released to the trustee upon his paying its reasonable value. The court on review held the collector entitled to payment of his claim in full as an expense of administration, and the trustee appeals. So far as appears, the tax claimed by the collector was in all respects unexceptionable, that is to say the amount claimed constituted “taxes legally due and owing by the bankrupt.” It is not contended that the valuation placed on the property was excessive, or that the tax was wrongly computed, or that in arriving at the valuation for tax purposes the amount of the encumbrance on the pledged portion of the property was, under state law, required or permitted to be deducted. Admittedly, also, the tax was unsecured, was due and payable on the first Monday in March,* and liability for its payment then attached as a personal obligation. We turn now to § 64, sub. a of the Bankruptcy Act. This, so far as pertinent, 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 (1) * * ; the costs and expenses of administration * ; (4) taxes legally due and owing by the -bankrupt to the United States-or any State or any subdivision thereof: Provided, That no order shall be made for the payment of -a tax assessed against any property of the bankrupt in excess of the value of the interest of the bankrupt estate therein as determined by the court: And provided further, That, in case any question arises as to the amount or legality of any taxes, such question -shall be heard and determined by the court; * The trustee's -argument, as we understand it, is that the first proviso of this statute prohibits the payment of a tax to the extent that it is based on an assessment in excess of the value of the interest of the bankrupt estate in the property. We disagree. The proviso confers no authority on the court to reduce a tax claim unless the tax exceeds the value of the -bankrupt’s interest in the property. Glass v. Phillips, 5 Cir., 139 F.2d 1016; In re Ingersoll Co., 10 Cir., 148 F.2d 282. Such was not the case here. The property assessed was one lot of goods, part of which had come into the possession of the estate and wa-s sold for more than the amount of the total tax. We agree with the trial court that the subsequent abandonment of the pledged property did not operate to avoid the personal liability for taxes accrued while the debtor and the trustee were conducting the business pursuant to court order. We find nothing in the Act which relieves the trustee or debtor in possession from the payment of current taxes as they accrue. Cf. Boteler v. Ingels, 308 U.S. 57, 521, 60 S.Ct. 29, 84 L.Ed. 78, 442; Swarts v. Hammer, 194 U.S. 441, 24 S.Ct. 695, 48 L.Ed. 1060; United States v. Killoren, 8 Cir., 119 F.2d 364. The Bankruptcy Court is given no authority to redetermine an assessment, or to divide it arbitrarily, after it has been quasi-judicially determined pursuant to state law. Arkansas Corporation Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244. Assuming the doubtful proposition that the trustee was entitled to any relief, his remedy wa-s by application to the county board of equalization. Quinn v. Aero Services, Inc., 9 Cir., 172 F.2d 157. Affirmed. 11 U.S.C.A. § 104, siibTa(4b § 2901, Revenue & Taxation Code of California, §§ 3C03, 3004, Revenue & Taxation Code of California. 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_genapel2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. MOSS et al. v. SHERBURNE et al. (Circuit Court of Appeals, First Circuit. March 3, 1926. On Petition for Rehearing April 6, 1926.) No. 1855. 1. Exceptions, bill of <S=4I (1)— Bill of exception filed within extension of time granted therefor held timely (District Court rule 19). Bill of exceptions, filed within extension of time granted therefor when motion for new trial was overruled, held, under District Court rule 19, timely filed. 2. Sales <@=>89 — Whether buyer, after seller’s attempted cancellation of contract, waived rights thereunder by making new contract for part of same goods, held for jury. Whether buyer of sugar, after seller’s attempted cancellation of contract by making new contract for part of same sugar, waived or relinquished rights under first contract, held, under conflicting evidence as to whether he was told that he was purchasing same sugar, question for jury. 3. Appeal and error <@=>1050(1) — Error, if any, * in admitting evidence of market value at place other than place of delivery, in action for breach of contract to sell sugar, held not prejudicial. Where jury, in calculating damages for breach of contract to sell sugar f. o. b. Buenos Aires, did not consider evidence of market value in New York, but clearly considered price fixed in a second contract c. i. f. New York, in determining market value in Buenos Aires, held, error, if any, in admitting proof of” market value in New York, was not prejudicial.. 4. Sales <@=>418(2) — Measure of damages for seller’s breach of contract is difference between contract price and market value at time of breach and place of delivery. Measure of damages for breach, of contract by seller is difference between contract price and market value of goods at time of breach and place of delivery, or, if there is no market value at such place, then at nearest available market. 5. Sales <@=>416(2) — In action for breach of contract to sell sugar, evidence of contract price under second contract between same parties for same sugar held admissible as evidence of market, value. In action for breach of contract to sell sugar f. o. b. Buenos Aires, evidence of contract price of same sugar under a second contract c. i. f. New York between same parties held properly admitted as evidence of market value of sugar described in first contract. 6. Appeal and error <@=l 151(1). Clerical error in computing damages for breach of contract, if possible, may be corrected by remittitur, without new trial. On Petition for Rehearing. 7. Appeal and error <@=>835(2). Defense, first asserted on petition for rehearing on second appeal of case, held not available. In. Error to tlie District Court of the United States for the District of Massachusetts; James M. Morton, Judge. Action by John H. Sherburne and others, trustees, against Jacinto Moss and others. Judgment for plaintiffs, and defendants bring error. Affirmed, on condition remittitur be. filed; otherwise, .reversed, and new trial granted. See, also, 295 E. 769. Gaston, Snow, Saltonstall & Hunt, of Boston, Mass. (Dunbar E. Carpenter and Thomas Hunt, both of Boston, -Mass., of counsel), for plaintiffs in error. Howard Stockton, Jr., and John H. Sherburne, both of Boston, Mass. (Sherburne, Powers & Needham and Warren, Garfield, Whiteside & Lamson, all of Boston, Mass., on the brief), for defendants in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. This is a writ of error to the United States District Court for the District of Massachusetts to reverse a judgment entered in an action of contract brought by the receivers in bankruptcy of E. R. Sherburne Company, a Massachusetts corporation, to whose rights the present defendants in error have succeeded against Moss & Co., plaintiffs in error, co-partners, with a-usual place of business at Buenos Aires in the Argentine Republic, to recover damages for breach of a contract to deliver to the Sherburne Company 23,000 tons of sugar; Eor convenience the plaintiffs in error will be referred to as “Moss” .and the defendants in error as “Sherburne.” A written contract was entered into by Sherburne with Moss on April 14, 1920, for the purchase of 23,000 tons of sugar at $332 per ton f. o. b. Buenos Aires. This contract was as follows: “Minford, Lueder & Co., 106 Wall Street, New York. “Contract No. 2033. April 14, 1920. “Messrs. Moss & Co. Buenos Aires, Argentine — Gentlemen: We beg to confirm the purchase on this date from your good selves through your New York representatives, Messrs. Aboab Hermanos of Buenos Aires and New York, as sellers, for account of the E. R. Sherburne Company, Boston, as buyers, of about twenty-three thousand (23,000) long tons (of 2,240 pounds each) pile, pure, white granulated sugar, polarizing 99° plus and equal in quality to United States standard granulated sugar. “At a price of three hundred thirty-two dollars ($332) per long ton of 2,240 pounds, free on board, Buenos Aires. “Sugar to be shipped in vessels to be provided by buyers, and sellers to have sugars ready for delivery at steamer’s call at Buenos Aires during April and May, 1920, and June, 1920. “Sugars to be invoiced on net shipping weights. “Payment: Buyers are to open by cable a confirmed, irrevocable credit in favor of Messrs. Moss & Company, Buenos Aires, to be availed of by sight against delivery of complete set of shipping documents, including certificate of analysis and Argentine export license, not including prepaid freight. “Buyers are to receive a guaranty of shipment at the point of embarkation and of performance of this contract by the seller, which guaranty is to be acceptable to buyer’s bank and against satisfactory evidence of analysis as to the quality of the sugar by the American Chamber of Commerce of Buenos Aires and export license of the Argentine government. “Marine insurance from shore to shore, including craft risk, loading and discharging to be for buyer’s account. “Sellers to notify buyers by cable immediately the vessels designated to take the sugar arrive at loading port for purposes of insurance. “Yours very truly, “Minford, Lueder & Co., Buyers. “Sellers: J. Moss & Cie, “By Aboab Herms. “J. J. Bela. “Accepted: E. R. Sherburne Co. “E. R. Sherburne, Brokers.” This case came on for trial in the District Court before a jury, which made special findings in favor of the plaintiffs in answer to questions submitted by the court, and also, on March 10, 1922, by its direction, returned the following alternative verdict: “The jury find for the plaintiffs and assess damages in the sum of one million three hundred sixty-one thousand seven hundred six and 14/ioo dollars. “But if, as a matter of law, the plaintiffs are not entitled to a verdict, then the jury find for the defendants and consent that this verdict may be entered on order of the United States District Court for the District of Massachusetts, or of the United States Circuit Court of Appeals for the First Circuit or of the Supreme Court of the United States, with same effect as if returned by them.” On March 11, 1922, Moss filed a motion for a new trial, and also to set aside the verdict for the plaintiffs, and to enter one for the defendants. The judge of the District Court, on August 22, 1922, set aside the verdict for the plaintiffs and entered a verdict for the defendants, upon the ground that the plaintiffs had failed to establish either authority of Aboab Hermanos to act as the agent of the defendants or the ratification of the contract by them. Upon a writ of error by plaintiffs this court held that the jury was warranted in finding that the contract was either authorized or ratified, and an order was entered vacating the judgment of the District Court, setting aside the verdict for the defendants, and remanding the ease to the District Court for further proceedings not inconsistent with the opinion rendered. See Sherburne v. Moss, 295 F. 769. After receipt of the mandate of this court the District Court, on July 22, 1924, ordered the verdict for Moss to be set aside, and judgment entered for Sherburne on the verdict of the jury. The case has now been brought here by Moss upon a writ of error. We are met at the outset by a motion of Sherburne to strike the bill of exceptions from the record, on the ground that it was not filed within the time allowed by law or the .rules of the District Court. When, on July 22, 1924, judgment was entered for Sherburne on the verdict of the jury, the motion of Moss for a new trial was then pending. By order of the District Court the time for filing a bill of exceptions by Moss was extended to November 1,1924, and this bill of exceptions was filed October 27, 1924. The motion for a new trial which had been filed by Moss was not disposed of until judgment upon the verdict was entered for Sherburne; and as, under rule 19 of the District Court, which provides that a bill of exceptions must be filed within 20 days after the verdict or the denial -of a motion for a new trial, “unless the court or judge shall otherwise order,” and the time for filing the same had- been properly extended to November 1, 1924, the bill of exceptions in this ease was seasonably filed. Slip Scarf Co. v. William Filene’s Sons’ Co. (C. C. A.) 289 F. 641. When the case was formerly before this court upon Sherburne’s exceptions, we held that the only questions presented were whether there was any evidence from which the jury might reasonably find that Moss either authorized or ratified the contract of April 14th, and only the evidence pertaining to the questions of authorization and ratification was before us. The following positions are now taken by Moss as grounds for reversal: First. That, by making a contract on April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract of April 14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that, as a matter of law, such was the case. Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to he introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages. The contract of April 14, 1920, was canceled on or about April 17, 1920, by a cable from Aboab of Buenos Aires to Aboab in New York, on the ground that credit had not arrived on April 16th. On April 26, 1920, another contract was made between the same parties for the purchase of 20,500 tons of what the parties have stipulated was a part of the sugar included in the former contract, at the price of $410 per long ton of 2,240 pounds, e. i. f. New York, and with the provisions that the export duty, if any, was to be for buyer’s account, and that, if the export license was not granted before the 10th of May following, the contract should be null and void. No export license was obtained, and' no sugar was shipped under this contract. At the close of the evidence Moss made the following requests for rulings: “A subsequent contract covering the same subject-matter and made by the same parties as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, supersedes, and is substituted for the earlier contract, and becomes the only agreement of the parties on the subject. “If and when the parties to the contract of April 14, 1920, entered into a new contract (that of April 26, 1920), covering the the same subject-matter, the new contract necessarily superseded, -abrogated, and took the place of the first as a matter of law, and became the measure of the obligations of both parties.” The court declined to give these instructions, but gave the following: “On the 26th another arrangement was made, or a contract even, between Moss & Co. and the Sherburne Company, with reference to 20,500 tons. The defendant says that the contract related to the remainder of the same sugar that had formed the subjeet-matter of the 23,000-ton contract of two weeks previous, and that, when the parties made that contract — the same parties — it was understood that all rights under the contract of April 14th were waived and abandoned by the plaintiff or by the Sherburne Company. The plaintiffs and the Sherburne Company say that was not so at all; that nothing was said about their giving up their rights under the April 14th contract; that their attitude was they were insisting upon those rights, and made this purchase of sugar as a purely independent transaction. Well, you are to decide which the understanding of the agreement was. To put it exactly: Are you satisfied by a fair preponderance of the testimony, at the time when Sherburne & Co. and Moss & Co. entered into the contract of April 26th, it was understood and agreed between those parties that the Sherburne Company relinquished and abandoned and waived any and all rights which it had under the contract of April 14th? Are you satisfied that is so? If you are, you will answer that question ‘Yes.’ If you are not satisfied, you will answer it ‘No.’ ” The jury, by a special finding, answered the question in the negative. If it had been shown hy uneontradicted testimony that Sherburne knew at the time of the second contract that its subjeet-matter was the same lot of sugar as that covered by the first, and the circumstances were such that no other conclusion could be drawn than that a cancellation or waiver of rights under the first contract was intended, the requested instruction would have been proper. But the testimony on the part of Moss and Sherburne as to whether the latter was told that it was the same lot of sugar was conflicting, and, as there was nothing to distinguish the lot of pile sugar embraced in the second contract from any other lot, it was for the jury to say whether Sherburne had waived any of his company’s rights under the first contract. The jury have passed upon this by their special finding under the instructions that were given, and which, although in some respects inadequate, placed the issue of waiver squarely before them. We cannot hold as a matter of law that these instructions, under the conflicting testimony which was given, were not right, or that there was error in refusing to give the requested instructions. Over the objection of Moss testimony was introduced as to the market value in New York of white granulated sugar during the months of April and May, 1920. It is evident, however, that Moss was not prejudiced by this, because the jury, in arriving at their verdict, did not consider it. The well-understood rule for the assessment of damages for breach of a contract for the sale of goods, in both federal and state courts, is that, if the contract is broken by the seller, the buyer may recover as damages the difference between the contract price and the market value of the goods at the time of the breach and at the place of delivery, or, if there is no market value at such place, then at the nearest available market. In this case, under objection of the defendant, to which exception has been taken, the jury were allowed to take into consideration as evidence of the market value of Argentine pile sugar at Buenos Aires at the time of the breach of the contract the price of the same fixed in the second contract, which was $410 per long ton of 2,240 pounds or 18.30 cents per pound e. i. f. New York. The price of sugar per pound under the first contract was 14.82 cents per pound f. o. b. Buenos Aires. To this amount was added the cost of freight, handling, and the import duty into the United States, making in all the sum of 17.43 cents per pound for this sugar unloaded in New York. By adding to 18.30 cents, the cost per pound under the second contract e. i. f. New York, the import duty of 1.36 cents per pound and the cost of handling, .25 cents per pound, the price of 19.91 cents per pound was obtained as the cost of this sugar in New York. The cost of insurance, which, according to the testimony, was 3 cents per 100 pounds, was not added to the contract price in either ease. The amount thus obtained for the cost of sugar in New York under the first contract, deducted from the price under the second contract, left a difference of 2.48 cents per pound, which it is evident was the basis upon which damages were calculated by the jury. It was not, however, according to the undisputed evidence, the difference between the prices under the two contracts. The import duty may be discarded in the consideration of prices under them, as in each it was to be paid by the buyer. If to the price under the first contract, 14.82 cents f. o. b. Buenos'Aires, freight, 1 cent per pound, and insurance, 3/ioo cents per pound, are added, the price, New York, would be 15.85 cents per pound, and this, deducted from 18.30 cents per pound, the price under the second contract, which includes freight' and insurance, but not handling, would leave a difference of 2.45 cents per pound. The same result would be arrived at by deducting from 18.30 cents per pound, the price e. i. f. New York under the second contract, freight and insurance, making the cost f. o. b. Buenos Aires 17.27 cents per pound, or 2.45 cents per pound more than the price under the first contract. As 23,000 long tons are 51,520,000 pounds, this error would reduce the verdict by $15,436. There was no error in admitting the price in the second contract as evidence of the market value of the sugar described under the first contract at Buenos Aires on the date of the breach of the contract, but there was clearly a clerical error in the computation of damages. To avoid the expense of a new trial, this may be corrected by a remittitur. Hansen v. Boyd, 16 S. Ct. 571,161 U. S. 397, 411, 40 L. Ed. 746; Van Boskerck v. Torbert, 184 F. 419, 422, 107 C. C. A. 383, Ann. Cas. 1916E, 171; Straus et al. v. Victor Talking Machine Co. et al. (C. C. A.) 297 F. 791, 807. Ordered, if the defendants in error, within 15 days after this opinion is handed down, file a remittitur of $15,436, with interest for 400 days, the time for which interest was allowed by the jury, in the office of the clerk of the District Court, and a certified copy in the office of the clerk of this court, the judgment, less the amount so remitted, will be affirmed, with costs in this court to the plaintiffs in error. If this is not done, the verdict will be vacated, judgment reversed, and a new trial granted, with costs to the plaintiffs in error. On Petition for Rehearing. The plaintiffs in error have petitioned for a rehearing since our opinion was handed down in this case. In addition to the defenses relied upon at the trial of this action, and which were argued before us, the petitioner now contends that the contract of April 14,1920, was a conditional one; that under it Moss did not guarantee that an export license could be obtained from the Argentine government; and that the contract, if one were made, was conditioned upon his being able to obtain this. The case has been before this court twice, and neither time was this position taken by Moss. The only defenses relied upon the second time the ease was argued- before us were: First. That by making the contract of April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract.of April'14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that such was the ease. Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to be introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages. ’In our opinion we discussed these defenses, and find nothing in the petition which causes us to reach a different conclusion from that which we then reached. The petition is denied. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_constit	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Lonnie C. HOOD, Plaintiff-Appellant, v. TENNECO TEXAS LIFE INSURANCE CO., Southwestern Management & Research Corp., et al., Defendants-Appellees. No. 83-2190. United States Court of Appeals, Fifth Circuit. Aug. 23, 1984. Evans & Moses, Steven C. • Barkley, Beaumont, Tex., for plaintiff-appellant. Harry M. Reasoner, Page I. Austin, Karl S. Stern, Houston, Tex., Charles G. Barnett, Dallas, Tex., Dewey J. Gonsoulin, Beaumont, Tex., for defendants-appellees. Before THORNBERRY, WILLIAMS, and GARWOOD, Circuit Judges. GARWOOD, Circuit Judge: This is an appeal from a summary judgment in an antitrust suit. Plaintiff-appellant, Lonnie C. Hood, who had worked as a career agent for the Southwestern Life Insurance Company (Southwestern Life) for many years, was terminated by the company in September 1980. At about the same time, an affiliated company, Southwestern Management & Research Corporation (Southwestern Management), terminated Hood’s employment as a registered representative selling mutual funds and other financial instruments. Hood sued these companies and three others in federal district court, alleging that his termination constituted a group boycott which substantially restrained competition in violation of section 1 of the Sherman Act, 15 U.S.C. § 1, and article 21.21, section 4(4) of the Texas Insurance Code. The district court, after reviewing the pleadings, depositions, and admissions on file, in addition to affidavits submitted by the parties, on March 1, 1983 granted defendants’ motion for summary judgment on all of plaintiff’s claims. We affirm. I. FACTS Lonnie Hood became a career agent with Southwestern Life in its Beaumont branch office in 1953 and served in this capacity until his termination by the company in September 1980. In 1971 Hood also became a registered representative of Southwestern Management, an affiliated company of Southwestern Life which functions as a service company for Southwestern Life insurance agents who wish to sell mutual funds and annuities. Although his contract with Southwestern Life provided that Hood would sell only its policies, in 1965 he began to sell policies for other companies. At the time of his termination, Hood had signed agreements with over twenty-five companies and did substantial business with these. He received formal permission from Southwestern Life to do so only on one occasion in 1971. The company, however, apparently did not strictly enforce its restrictions regarding brokering for other companies either as to Hood or as to its other agents. By 1980 Southwestern Life’s competitive position in the Beaumont area had deteriorated. Hood believed that the company was not competitive in certain areas of the market. He expressed his concerns to officers of the company as well as to other Southwestern Life agents. In September 1980 Southwestern Life appointed a new manager, Thomas Martin, for the Beaumont branch office. Martin was told by James Cobb, a vice president of Southwestern Life, that the agency needed rebuilding in the form of new agents and increased production. Cobb also told Martin that Lonnie Hood placed a great deal of business outside Southwestern Life .and that Hood had a negative attitude toward the company and its products. Shortly after assuming his new duties, Martin recommended the termination of Hood’s agency contract. The company accepted his recommendation and on September 25, 1980 sent Hood a letter informing him of its decision. This letter, which was the first notice that Hood received regarding his termination, gave no reasons for the company’s action. On October 6, 1980 Southwestern Management also sent Hood a notification that he had been terminated as a registered representative for that company. It was the usual policy of Southwestern Management to terminate a representative when that individual had also been terminated by Southwestern Life, although some individuals under these circumstances had requested and been allowed to remain representatives of Southwestern Management. There is no evidence that Hood made such a request. Hood initiated this suit on May 6, 1981 alleging violations of section 1 of the Sherman Act, 15 U.S.C. § 1, and alternatively, an illegal tying agreement in violation of section 3 of the Clayton Act, 15 U.S.C. § 14. Subsequently, he amended his complaint to add a claim under article 21.21, section 4(4) of the Texas Insurance Code. The district court granted summary judgment on all claims. Hood appeals only his claims under section 1 of the Sherman Act and article 21.21 of the Texas Insurance Code. He does not appeal the district court’s judgment on his Clayton Act claim. II. SUMMARY JUDGMENT We are mindful that we review this case under the summary judgment standard. This standard is a strict one, allowing the entry of summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c), see, e.g., Transource International v. Trinity Industries, Inc., 725 F.2d 274, 279 (5th Cir.1984). Moreover, in considering a motion for summary judgment, a court must draw all reasonable inferences in favor of the nonmoving party. In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 440 (5th Cir.1982). However, once the moving party makes an initial showing that no genuine issue of material fact exists, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R. Civ.P. 56(e). In reviewing a summary judgment on appeal, we apply the same standard as that used by the district court. Transource, 725 F.2d at 279. III. FEDERAL ANTITRUST CLAIM Hood’s claim that Southwestern Life and Southwestern Management conspired to terminate him in violation of section 1 of the Sherman Act has been foreclosed by a recent decision of the Supreme Court, Copperweld Corporation v. Independence Tube Corp., — U.S. -, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). In,Copperweld the plaintiff,' David Grohne, had formed a new corporation, Independence Tube Company, that would compete in the steel tubing market with Regal Tube Company, a wholly owned subsidiary of Copperweld Corporation. Obviously concerned about this new competitor, Copperweld and Regal Tube took a number of steps to discourage those contemplating doing business with Independence Tube. A jury found that Copperweld and Regal Tube had violated section 1 of the Sherman Act through these concerted activities and the Seventh Circuit affirmed. The Supreme Court reversed, however, holding that a parent corporation and its wholly owned subsidiaries are legally incapable of conspiring with each other in violation of’ section 1 of the Sherman Act. In so holding, the Court rejected in large part the “intra-enterprise conspiracy doctrine,” a doctrine applied to allow recovery under the Sherman Act for the coordinated acts of a parent and its subsidiary. The Court expressed as the basis for its decision the unity of purpose shared by the parent and its subsidiary: “A parent and its wholly owned subsidiary have a complete' unity of interest____ With or without a formal ‘agreement,’ the subsidiary acts for the benefit of its parent, its sole shareholder. If a parent and a wholly owned subsidiary do ‘agree’ to a course of action, there is no sudden joining of economic resources that had previously served different interests, and there is no justification for § 1 scrutiny.” Id. at-, 104 S.Ct. at 2742. Hood’s claim of a section 1 violation concerns the termination of his contract as an agent, a decision that he alleges was jointly made by Southwestern Life and Southwestern Management. Each of these companies, however, is a wholly owned subsidiary of a common parent corporation — Tenneco. Copperweld teaches us that because they share a common purpose with Tenneco they cannot conspire with their parent in violation of the Sherman Act. By the same token, neither can they conspire with one another. In light of Copperweld, therefore, we must affirm the grant of summary judgment on Hood’s federal antitrust claim. IV. STATE ANTITRUST CLAIM In addition to claiming a violation of federal antitrust law, Hood alleges that the termination of his contract violated article 21.21, section 4(4) of the Texas Insurance Code. Tex.Ins.Code Ann. art. 21.21 § 4(4) (Vernon 1981). This section states: “Sec. 4. The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: “(4) Boycott, Coercion and Intimidation. Entering into any agreement to commit, or by any concerted action committing, any act of boycott, coercion or intimidation resulting in or tending to result in unreasonable restraint of, or monopoly in, the business of insurance; We affirm the district court’s grant of summary judgment on this state law claim asserted by Hood. At the onset, we are uncertain that Texas law would even recognize the claim asserted by Hood and for much the same reason as expressed by the Supreme Court in Copperweld. Texas courts have held that a statutory combination or concerted action in violation of the state antitrust laws cannot occur unless those combining are independent and in competition with one another. See State v. Fairbanks-Morse & Co., 246 S.W.2d 647, 658-59 (Tex.Civ.App. — Dallas 1952, writ ref’d n.r.e.). “Our Supreme Court from early times has ruled that a statutory combination cannot exist unless the two or more persons are independent and capable of acting in competition with one another____” Padgitt v. Lone Star Gas Co., 213 S.W.2d 133, 136 (Tex.Civ.App. — Dallas 1948, no writ). While these courts were interpreting articles 7426-7428, the predecessor statutes of the general Texas antitrust laws, rather than the insurance code provision at issue in this case, it is probable that the Texas courts would apply the same reasoning to claims such as that made by Hood. Under this reading of Texas law, Southwestern Life and Southwestern Management, which are neither “competitors” nor independent, cannot combine or act in a concerted manner. We decline, however, to rest our holding on this interpretation. While Fairbanks-Morse suggests broadly that those charged with combining in restraint of trade must be capable of acting in competition with one another, the decision in Padgitt indicates this requirement applies only to trusts, as the court in that case considered the merits of a claim of conspiracy between a gas company and a customer. Moreover, while we believe that these decisions do reflect a requirement that those conspiring be “independent,” we cannot be certain at this point that the Texas courts would apply the rule expressed by the Supreme Court in Copperweld regarding subsidiaries of a common parent. This is particularly true as that case at least arguably effected a change from the previous practice and as we have found no Texas case that specifically addresses this issue. For these reasons, we address the merits of appellant’s state claim apart from Copper-weld. Our task is hampered somewhat by the paucity of cases discussing section 4(4) of article 21.21; research has yielded only one — Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737 (Tex.Civ.App.— Austin 1977, writ ref’d n.r.e.). In Russell the plaintiffs claimed that their insurer had violated this provision by attempting to “coerce and intimidate” them through the cancellation of a rental car agreement. The Texas Court of Civil Appeals rejected this claim and affirmed summary judgment for the defendant, stating that the purpose of section 4(4) is “to prevent monopoly or unreasonable restraint in the business of supplying insurance.” 548 S.W.2d at 742. While this decision shows that Texas would not apply this provision to every unfair or potentially intimidating act by an insurer, it does not express the standards to be used in assessing a violation of the section. The parties both contend, however, that this Court should apply the test under section 1 of the Sherman Act, 15 U.S.C. § 1, in assessing Hood’s claim. We agree, finding support for this approach in Russell, which shows that the Insurance Code provision is aimed at antitrust violations, and in the common purpose reflected in the two statutes — to prevent concerted anticompetitive conduct. SHERMAN ACT ANALYSIS Per Se Restraint Of Trade. Hood first contends that his termination by Southwestern Management and Southwestern Life was a horizontal boycott and thus constituted a per se violation. He argues that through their actions the Tenneco subsidiaries sought to send a message to remaining Southwestern Life agents to stop brokering the products of other insurance companies. For this reason, he argues, his termination , was intended to harm other insurance companies which compete on the same level with Southwestern Life in the Beaumont area. While conceding that Hood’s termination was due to his low production for Southwestern Life, defendants contend that their action was justified and, in any event, did not violate the antitrust laws. We find no per se restraint. First, it is established that horizontal combinations in restraint of trade are “agreements among actual competitors which restrain competition at the same level of distribution.” Transouree International v. Trinity Industries, Inc., 725 F.2d 274, 279 (5th Cir.1984) (emphasis added). Southwestern Life and Southwestern Management, however, are. not actual competitors. The former is an insurance company and sells only insurance products; the latter is a broker/dealer in securities and sells mutual funds and variable annuities. Moreover, the record reflects that Southwestern Management functioned as a service company for Southwestern Life agents; its purpose was to enable them to sell products they could not otherwise offer. Second, in any event, we find no horizontal component in the termination of Hood by the two companies. Neither company competes with Hood. Hood has not alleged and shown to be a co-conspirator any individual, such as another agent, who is independently a competitor of Hood; nor has he alleged and shown that the asserted conspiracy had as a purpose or effect the restriction of competition among agents who were his competitors. In Blackburn v. Crum & Forster, 611 F.2d 102, 104 (5th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 856 (1980), this Court, in considering a similar contention by a terminated insurance broker, found that the case “contains no horizontal aspect, but involves only a vertical action undertaken by suppliers, the insurance company defendants, against their agent ____” Cf Black v. Nationwide Mutual Insurance Co., 429 F.Supp. 458 (W.D.Pa.1977), aff'd, 571 F.2d 571 (3d Cir.1978) (no antitrust violation in termination of insurance agent by three related insurance companies). Hood's termination did not constitute a horizontal boycott. Rule of Reason. Because we have concluded that there was no horizontal restraint of trade, we must analyze Hood’s claim under the rule of reason. Transource at 280; Muenster Butane, Inc. v. Stewart Company, 651 F.2d 292, 295 (5th Cir.1981). “The rule of reason inquiry focuses on the competitive significance of a particular restraint ____” Hornsby Oil Company, Inc. v. Champion Spark Plug Company, 714 F.2d 1384, 1392 (5th Cir. 1983). To recover under this rule, the plaintiff must show that the defendant’s actions adversely affected competition in the appropriate product and geographic markets. Id. Hood has failed to show sufficient anticompetitive effect to prevail on his claim. It is undisputed that there was vigorous competition in Beaumont between the twenty to thirty companies selling life insurance there. Further, Hood does not dispute that Southwestern Life’s share of the overall ordinary life insurance business in that city was less than five percent and that entry or expansion into the market was not difficult. This is significant as we have held that the termination of a dealer by a supplier lacking market power cannot have an adverse effect on competition. See Carlson Machine Tools, Inc. v. American Tool, Inc., 678 F.2d 1253, 1259-60 (5th Cir. 1982) (affirming summary judgment against terminated distributor where manufacturer’s market share never exceeded ten percent); Daniels v. All Steel Equipment, Inc., 590 F.2d 111 (5th Cir. 1979) (summary judgment in case involving termination of a sales representative). Hood argues, however, that the relevant market in his case was not the entire life insurance business in Beaumont, but rather a discrete market consisting of professional men over the age of forty. He contends that Southwestern Life had a market share of approximately twenty-five percent in this market. It is true, of course, that defining a market is an important consideration in an antitrust action. We have said that market considerations provide the “objective benchmarks” for determining a section 1 violation. Hornsby Oil, 714 F.2d at 1393. And it is also true that “[wjithin a broad product market, economically significant submarkets may exist which in themselves constitute product markets.” Id. at 1393. Hood’s showing on this theory, however, is wholly insufficient. His statement is that this twenty-five percent of the market share of executives and professionals over forty in the Greater Beaumont Area consists of those who “either were or had been policyholders of Southwestern Life.” This figure, therefore, does not represent a market share at a particular point in time, but rather is a cumulative figure representing a total number of policyholders over some unknown period of timé. We must infer that the twenty-five percent figure is overstated as to any particular relevant time. Moreover, Hood does not show how his termination impacted competition. He merely points to figures showing that brokering by Southwestern Life agents with one company — Philadelphia Life Insurance Company — increased significantly in 1980 (to $128,518 from $8,812 in 1979) and decreased to $58,203 in 1981, the year following his termination. We have no information that shows a link between Hood’s termination and the decline in brokering by Southwestern Life agents with this one particular company. Nor do we have any information regarding whether Philadelphia Life was unable to sell its products through other agents. In addition, Hood has failed entirely to show how this one-year decline in brokering by Southwestern Life agents with a single insurance company has impacted the product market he seeks to define. His argument * MESSAGE© *MORE SECTIONS FOLLOW-seems to be that Philadelphia Life would no longer be privy to the customer lists of Southwestern Life and, thus, could not penetrate the over-forty executive-professional market. The latter conclusion, however, is entirely speculative. The antitrust laws, moreover, do not require companies to share this type of information. Finally, Hood has conceded that Southwestern Life could enforce the provision in its contracts with its agents requiring them to sell only its products. The anticompetitive effects of this action would be no different, however, than those claimed by Hood as a result of his termination. Cf Red Diamond Supply, Inc. v. Liquid Carbonic Corp., 637 F.2d 1001, 1007 (5th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981) (finding no antitrust violation where the defendant could have attained the same results through a lawful means as it accomplished by an allegedly illegal means). Given the admittedly vigorous competition in Beaumont and the ease of entry into the market, there is simply no showing, beyond mere speculation, that Hood’s termination, even if we infer some effect on brokering by other Southwestern Life agents, either had or was calculated to have any anticompetitive effect. Hood has thus failed to provide adequate evidence of anticompetitive effect to raise a material fact issue and to preclude summary judgment under the rule of reason. V. CONCLUSION In sum, we find that Hood’s federal antitrust claim has been foreclosed by the Supreme Court’s decision in Copperweld because Southwestern Life and Southwestern Management are wholly owned subsidiaries of a common parent company. In addition, we find that he has failed to prevail on his state law claim. For these reasons, we affirm the decision of the district court. AFFIRMED. . The others are Southwestern Investors, Inc., Southwestern Investors Income Fund, Inc., and Fund of the Southwest, Inc. There is no claim, however, that these companies were involved in Hood’s termination. . Later, in response to a letter from Hood’s attorney, Southwestern Life stated that Hood’s termination was due to the "fact that he was placing the majority of his business with another life insurance company and had ceased to be a representative primarily for Southwestern Life Insurance Company. ... Simply stated, Mr. Hood had, by his actions, ceased to be a career agent for Southwestern Life, and our notice of termination merely confirmed that point.” Hood's contract with Southwestern Life provided it could be terminated at any time by either party on written notice to the other. . One reason offered for this policy is that, under the rules of the National Association of Securities Dealers, an individual may work as a registered representative for only one company. The premise is that individuals leaving Southwestern Life would wish to become a representative of a securities firm associated with another life insurance company. . Before its acquisition by Copperweld, Regal Tube was an unincorporated division of Lear Siegler, Inc. Grohne served as president of this division. . For example, they sent to parties with whom Grohne was attempting to deal a letter warning of their intent to protect their rights under the terms of their purchase agreement and to protect the trade secrets purchased from Lear Siegler. After receiving this letter, Yoder Company canceled a contract with Grohne under which the former was to supply a tubing mill. Copper-weld and Regal Tube also contacted banks that were considering financing the new company as well as prospective suppliers and customers of Independence Tube. . The Court reserved the question of whether a parent company may conspire with an affiliated company it does not wholly own. . Thus, we do not directly address the merits of Hood’s federal claim, as such, apart from the Copperweld rule, although, as shown by the discussion of his state law claim, the result would be the same. . The district court had jurisdiction over this pendent state claim. See Transource International v. Trinity Industries, Inc., 725 F.2d 274, 285-86 (5th Cir.1984). . See also Albin v. Isotron Corporation, 421 S.W.2d 739 (Tex.Civ.App. — Texarkana 1967, writ ref'd n.r.e.). . Supporting this conclusion is the fact that the wording of article 21.21, section 4(4), while differing from that of section 1 of the Sherman Act, is quite similar to the wording in the McCarran-Ferguson Act. This act generally exempts the insurance industry from regulation under the federal antitrust laws including the Sherman Act. 15 U.S.C. § 1012(b). There is an exception to this general exemption: the Sherman Act remains applicable "to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 15 U.S.C. § 1013(b). This Court has analyzed claims of boycotts by insurance companies under the test applied for violations of section 1 of the Sherman Act. Blackburn v. Crum & Forster, 611 F.2d 102 (5th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 856 (1980). See also St. Paul Fire and Marine Ins. Co. v. Barry, 438 U.S. 531, 541, 98 S.Ct. 2923, 2929, 57 L.Ed.2d 932 (1978). . Horizontal agreements are ordinarily considered illegal per se " 'because of their pernicious effect on competition and lack of any redeeming virtue.’ ” Transouree, 725 F.2d at 279, quoting Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Where a per se violation has occurred, the plaintiff is not required to show any anticompetitive effects; these are presumed. Id. . From January to September 1980 Hood earned $7,168 in commissions for new business from Southwestern Life; his first year’s commissions with all other companies totaled $36,-851 during this same time period. His earnings for renewals from January to September were $6,530 and $9,480 respectively. Hood had voluntarily moved from the Southwestern Life branch office in Beaumont in June 1980 because he was placing much of his business with other companies. . Thus we reject Hood's contention, made during oral argument, that the two companies competed because each offered products relevant to financial planning and security. . Nor is there any other basis for finding a per se violation. See E.A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Committee, 467 F.2d 178 (5th Cir.1972), cert. denied, 409 U.S. 1109, 93 S.Ct. 912, 34 L.Ed.2d 690 (1973). . Both Hood and his expert witness testified that the life insurance business in the Beaumont area was intensely competitive. . The record reflects that Southwestern Life's overall share of ordinary life insurance in Texas at this time was 2.33 percent; its share of group insurance in that state was .67 percent. . "The outer boundaries of the product market are drawn in terms of the presence of substitutes to which consumers will turn in response to price changes ... and the ability of other existing products or new entrants to expand output ____” Hornsby Oil, 714 F.2d at 1393. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
sc_petitioner	055	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. LOUISIANA ex rel. FRANCIS v. RESWEBER, SHERIFF, et al. No. 142. Argued November 18, 1946. Decided January 13, 1947. James Skelly Wright argued the cause for petitioner. With him on the brief were Robert E. Kline, Jr. and John L. Ingoldsby, Jr. Michael E. Culligan and L. 0. Recot argued the cause and filed a brief for respondents. Mr. Justice Reed announced the judgment of the Court in an opinion in which The Chief Justice, Mr. Justice Black and Mr. Justice Jackson join. This writ of certiorari brings before this Court a unique situation. The petitioner, Willie Francis, is a colored citizen of Louisiana. He was duly convicted of murder and in September, 1945, sentenced to be electrocuted for the crime. Upon a proper death warrant, Francis was prepared for execution and on May 3, 1946, pursuant to the warrant, was placed in the official electric chair of the State of Louisiana in the presence of the authorized witnesses. The executioner threw the switch but, presumably because of some mechanical difficulty, death did not result. He was thereupon removed from the chair and returned to prison where he now is. A new death warrant was issued by the Governor of Louisiana, fixing the execution for May 9,1946. Applications to the Supreme Court of the state were filed for writs of certiorari, mandamus, prohibition and habeas corpus, directed to the appropriate officials in the state. Execution of the sentence was stayed. By the applications petitioner claimed the protection of the due process clause of the Fourteenth Amendment on the ground that an execution under the circumstances detailed would deny due process to him because of the double jeopardy provision of the Fifth Amendment and the cruel and unusual punishment provision of the Eighth Amendment. These federal constitutional protections, petitioner claimed, would be denied because he had once gone through the difficult preparation for execution and had once received through his body a current of electricity intended to cause death. The Supreme Court of Louisiana denied the applications on the ground of a lack of any basis for judicial relief. That is, the state court concluded there was no violation of state or national law alleged in the various applications. It spoke of the fact that no “current of sufficient intensity to cause death” passed through petitioner’s body. It referred specifically to the fact that the applications of petitioner invoked the provisions of the Louisiana Constitution against cruel and inhuman punishments and putting one in jeopardy of life or liberty twice for the same offense. We granted certio-rari on a petition setting forth the aforementioned contentions, to consider the alleged violations of rights under the Federal Constitution in the unusual circumstances of this case. 328 U. S. 833. For matters of state law, the opinion and order of the Supreme Court of Louisiana are binding on this Court, Hebert v. Louisiana, 272 U. S. 312, 317. So far as we are aware, this case is without precedent in any court. To determine whether or not the execution of the petitioner may fairly take place after the experience through which he passed, we shall examine the circumstances under the assumption, but without so deciding, that violation of the principles of the Fifth and Eighth Amendments, as to double jeopardy and cruel and unusual punishment, would be violative of the due process clause of the Fourteenth Amendment. As nothing has been brought to our attention to suggest the contrary, we must and do assume that the state officials carried out their duties under the death warrant in a careful and humane manner. Accidents happen for which no man is to blame. We turn to the question as to whether the proposed enforcement of the criminal law of the state is offensive to any constitutional requirements to which reference has been made. First. Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense. Ex parte Lange, 18 Wall. 163, 168, 175; In re Bradley, 318 U. S. 50. Compare United States v. Lanza, 260 U. S. 377, 382. But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. United States v. Ball, 163 U. S. 662, 672. See People v. Trezza, 128 N. Y. 529, 535, 28 N. E. 533. Even where a state obtains a new trial after conviction because of errors, while an accused may be placed on trial a second time, it is not the sort of hardship to the accused that is forbidden by the Fourteenth Amendment. Palko v. Connecticut, 302 U. S. 319, 328. As this is a prosecution under state law, so far as double jeopardy is concerned, the Palko case is decisive. For we see no difference from a constitutional point of view between a new trial for error of law at the instance of the state that results in a death sentence instead of imprisonment for life and an execution that follows a failure of equipment. When an accident, with no suggestion of malevolence, prevents the consummation of a sentence, the state’s subsequent course in the administration of its criminal law is not affected on that account by any requirement of due process under the Fourteenth Amendment. We find no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution. Second. We find nothing in what took place here which amounts to cruel and unusual punishment in the constitutional sense. The case before us does not call for an examination into any punishments except that of death. See Weems v. United States, 217 U. S. 349. The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Prohibition against the wanton infliction of pain has come into our law from the Bill of Rights of 1688. The identical words appear in our Eighth Amendment. The Fourteenth would prohibit by its due process clause execution by a state in a cruel manner. Petitioner’s suggestion is that because he once underwent the psychological strain of preparation for electrocution, now to require him to undergo this preparation again subjects him to a lingering or cruel and unusual punishment. Even the fact that petitioner has already been subjected to a current of electricity does not make his subsequent execution any more cruel in the constitutional sense than any other execution. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block. We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty. Third. The Supreme Court of Louisiana also rejected petitioner’s contention that death inflicted after his prior sufferings would deny him the equal protection of the laws, guaranteed by the Fourteenth Amendment. This suggestion in so far as it differs from the due process argument is based on the idea that execution, after an attempt at execution has failed, would be a more severe punishment than is imposed upon others guilty of a like offense. That is, since others do not go through the strain of preparation for execution a second time or have not experienced a nonlethal current in a prior attempt at execution, as petitioner did, to compel petitioner to submit to execution after these prior experiences denies to him equal protection. Equal protection does not protect a prisoner against even illegal acts of officers in charge of him, much less against accidents during his detention for execution. See Lisenba v. California, 314 U. S. 219, 226. Laws cannot prevent accidents nor can a law equally protect all against them. So long as the law applies to all alike, the requirements of equal protection are met. We have no right to assume that Louisiana singled out Francis for a treatment other than that which has been or would generally be applied. Fourth. There is a suggestion in the brief that the original trial itself was so unfair to the petitioner as to justify a reversal of the judgment of conviction and a new trial. Petitioner’s claim in his brief is that he was inadequately represented by counsel. The record of the original trial presented to us shows the warrant for arrest, the indictment, the appointment of counsel and the minute entries of trial, selection of jury, verdict and sentence. There is nothing in any of these papers to show any violation of petitioner’s constitutional rights. See Carter v. Illinois, 329 U. S. 173. Review is sought here because of a denial of due process of law that would be brought about by execution of petitioner after failure of the first effort to electrocute him. Nothing is before us upon which a ruling can be predicated as to alleged denial of federal constitutional rights during petitioner’s trial. On this record, we see nothing upon which we could conclude that the constitutional rights of petitioner were infringed. Affirmed. Fifth Amendment: "... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” See Twining v. New Jersey, 211 U S. 78, 99; Palko v. Connecticut, 302 U. S. 319, 324; In re Kemmler, 136 U. S. 436, 445; Collins v. Johnston, 237 U. S. 502, 510. See Kepner v. United States, 195 U. S. 100, 129; cf. United States v. Ball, 163 U. S. 662, 666-70. This Court said of a similar clause embodied in the constitution of New York, In re Kemmler, 136 U. S. 436,446: “. • - but the language in question as used in the constitution of the State of New York was intended particularly to operate upon the legislature of the State, to whose control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.” It added, p. 447: “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” Louisiana has the same humane provision in its constitution. Louisiana Constitution, Art. I, § 12. The Kemmler case denied that electrocution infringed the federal constitutional rights of a convicted criminal sentenced to execution. 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_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. JASLOW v. WATERBURY CO. (Circuit Court of Appeals, Second Circuit. November 2, 1925.) No. 54. I. Sales <@=>172 — Seller’s attempt to procure permits from British government held not to relieve buyer and his assignees of responsibility of procuring it. Where contract for sale of rope during the war contemplated no shipment without permit from British government, and placed responsibility for securing permit on buyer and his assignees, held, that seller’s attempt to obtain permit did not relieve buyer and its assignees from responsibility of obtaining permit. 2. Sales <@=>172 — -Seller held not required to deliver goods at dock, where shipping permit was refused. Where seller was directed by buyer or Ms assignees not to ship goods during the war without permit from British government, seller was not obliged to deliver goods at dock where British government refused permit. 3. Sales <@=>172 — Delay held to warrant rescission by seller. Contract for sale of rope, contemplating delivery and shipment only on obtaining shipping permit from British, government, need not be performed by seller, where purchaser failed from November 14, 1916, until June 29, 1917, to obtain permit; such delay being unreasonable. In Error to the District Court of the United States for the Southern District of New York. Action by Joseph Jaslow against the Waterbury Company for breach of, contract. Judgment for defendant, and plaintiff brings error. Affirmed. Davies, Auerbaeh & Cornell, of New York City (George T. Hogg, of New York City, of counsel), for plaintiff in error. Marsh & Wever, of New York City (Charles Capron Marsh and Rolph T. Marsh, both of New York City, of counsel), for defendant in error. Before ROGERS, MANTON, and HAND, Circuit Judges. MANTON, Circuit Judge. The assignor of the plaintiff in error, one Spieler of Malino, Sweden, on March 23, 1916, made inquiries of the defendant in error concerning the purchase of 100 tons Of second grade rope. He received a price for the rope and on the next day the defendant in error wrote to him offering the rope “for your customer f. a. s. New York or Brooklyn docks.” The letter contained the phrase: “The responsibility of shipping must rest with the buyer after we make delivery to steamer dock.” Thereupon Spieler wrote to his customer, offering the rope at increased prices. The letter expressly stipulated that no order for the shipment could be executed unless there was forwarded with the order a shipping permit and other necessary papers to obtain the approval of the British authorities. It stated: “We could make shipment of these goods in about 90 days from date of receiving British approval here in New York.” On April 18, 1916, Spieler’s customer accepted the offer and thereupon renewed his negotiations with the defendant in error for the purchase of the rope, and after such negotiations wrote the defendant in error, stating: “Referring to conversation of this morning w’ith you and your Mr. Waterbury, regarding our order of Herman Gotthardt, Malmo, Sweden, for 100 tons of your ‘Rex’ Manila rope, upon which, under date of March 24, 1916, you quoted us a price of 150 per lb., allowing us 2% per cent, as commission, we have yesterday received from Mr. Gotthardt an acceptance of this offer, to which we had added ,37%0, naming them a price of 15.37%0 per lb. f. o. b. New York in our letter to him of March 30th, which is the selling price to him, and you will please allow us the additional sum when making remittance to us.” The defendant in error wrote and cabled Gotthardt: “We accept your orders thirty and thirty-one through Abraham Spieler, your New York agent.” Spieler wrote Gotthardt, in which letter he stated that he had passed the order to the Waterbury Company, and that it would execute the order, but they first wanted confirmation, and he requested them to confirm the order. Thereupon Gotthardt cabled defendant in error, “Confirm my bargain one hundred tons Manila basis price letter April 18,” and wrote that: “In order to obtain a shipping permit I beg to address yourselves to Messrs. Furness, Withy & Co., 32 Broadway, New York, the agents for the Swedish-Ameriean Line in Gothenburg, with whose steamers I mean it is best to ship the goods, as they are going direct to Gothenburg from New York.” It is thus clear, as the facts appear upqn this trial, that the defendant in error accepted Gotthardt as a buyer of the rope from it upon the terms stated to Spieler, and in turn conveyed by him to the ultimate customer. Gotthardt confirmed .the bargain, which he referred to as “my bargain” in his cablegram. Thereafter 15 tons of the rope were shipped to the corporation known as Aktiebolaget German Gotthardt, to which Gotthardt had assigned his contract. On November 14, 1916, after this shipment, the Gotthardt corporation cabled, “Ship remainder first opportunity provided shipping permit obtained insure against capture confirm wireless,” to which the defendant in error sent a cable that insurance against capture was unobtainable and stated that if the Gotthardt corporation would open with “bankers confirmed credit in New York payment as delivered f. a. s. vessel New York you assuming all risks will send balance rope against permits issued freight insurance all shipping charges your account otherwise ask cancellation order.” Gotthardt did not reply, hut assigned its contract to another Swedish corporation, and sent a cable to Spieler, which was forwarded to the defendant in error and read as follows : “Instruct Waterbury Co. to obtain shipping permit for balance manila rope to Aktiebolaget Bachmans Repvaruafar Malmo; we guarantee payment when shipping documents presented here.” Thereafter on January 7,1917, the Bach-mans company wrote the defendant in error that it had taken over from the Gotthardt corporation the latter’s purchase of about 85 tons of manila rope, and asked the defendant in error to ship the rope as soon as possible on Swedish steamers in three or four different lots, and that it would pay for the goods as soon as the shipping documents were presented through any bank or bankers at Malmo, Sweden, but on no account must the goods be shipped without shipping permit being first obtained. The defendant in error tried unsuccessfully to secure a permit from the British authorities for Gotthardt. It applied for a permit for the Bachmans company, but the British authorities refused to issue one. There is sufficient proof to support the position of the defendant in error that it did apply for and failed in obtaining this permit. The proof also establishes that Gotthardt had been blacklisted by the British government under date of November 10, 1916, and such blacklisting applied to any assignee of Gotthardt. After failing thus to secure the permit, the defendant in error on February 1, 1917, wrote the Bachmans company advising it that for this reason it would cancel the contract. Copies of this letter were sent to Spieler and the Gotthardt corporation. Spieler received his copy and thereafter employed an attorney to look after his interest and the interest which he represented — the Gotthardt corporation and the Bachmans company. Thereafter there was considerable negotiation looking toward the fulfillment of the contract, but neither Spieler nor his assignees were able to secure the permit. On April 16, 1917, the Gotthardt and Bachmans corporations assigned the contract to Spieler. Having acquired the contract, and after a delay of two months, Spieler, through his attorney, on June 29,1917, made demand for deliveries “here in New York City.” On July 19, the defendant in error wrote Spieler’s attorney, inclosing a copy, of the letter of rescission and advising Spieler’s attorney that 'now it did not consider that there is an existing contract.. It is apparent that Spieler obtained an assignment of the contract with full knowledge of the inability to obtain the permit and the defaults of his assignors in so doing. He took the contract, knowing full well-the position of the defendant in error. Thereafter Spieler, Gotthardt, the Gotthardt corporation, and the Bachmans company joined in an assignment to the plaintiff in error, whb instituted the present 'action. ' ■ The theory of this action is that there was a breach of contract by nondelivery of the rope under the terms of the contract of purchase. The ease was here before, and the opinion then delivered is found in 296 P. .363. We there reversed a judgment for the plaintiff and ordered a new trial. On the new trial the learned District Judge held that the testimony was substantially the same,, and that the opinion which we delivered on the former appeal required his directing a verdict for the defendant in error, which he did. On this writ of error, it is contended that “the situation is the reverse from what it was when the case was 'here previously before this court,” and it is argued that it was established that the British letter of assurance could have been obtained within a reasonable time before shipment and for months thereafter; that the defendant in error agreed to obtain it and make prompt shipment, but deliberately delayed doing so. It is said that the.time for shipment expired on September 17, 1916. It is argued that Gotthardt’s confirmation was received on June 19, 1916, and that within 90 days the shipment should have been made. This alleged breach by nondelivery assumes that the defendant in error was obligated to obtain the British letter of assurance. Prom the documentary proof, it is clear that the responsibility of shipping rested upon the buyers and the delivery requirement of the defendant in error was to make delivery to the steamer’s dock. This was the stipulation that Spieler made in his letter to Gotthardt when he offered to sell to him. Gotthardt, after the deal was 'closed, wrote the defendant in error to the effect that he was going to insure the goods against sea and war risk. On this trial the evidence of the first trial was somewhat supplemented. Spieler testified: That he had a conversation with the sales manager of the defendant in error before the shipment of the rope, and in that conversation the sales manager told him that they had obtained authority and were going to make the shipment, and asked him to advise Gotthardt that they were going to take out the insurance. This was on July 18, 1916. That on October 12, 1916, after the shipment of 15 tons, he asked the sales manager to prepare and ship the balance of the rope As quickly as possible, and the sales manager replied that'the defendant in error was not going to manufacture any more rope until the 15 tons had been accepted and paid for. On cross-examination, he testified that the representative of the defendant in error never said any different than that the responsibility of shipping must rest with the buyer after they had made delivery to the steamer dock. The contract between the parties placed the responsibility and the duty on the plaintiff in error and his assignors to obtain or cause to be obtained the necessary shipping permit. What the defendant in error did in assisting or attempting-to obtain the permit in no way relieved the buyer or his assignors of the responsibility of obtaining the permit. Assistance of this character was not an assumption of such obligation. Apparently at no time after the first shipment was made was it possible to obtain this British permit and therefore the defendant in error was never in a position to do more than to make delivery at the ship’s dock. No difficulty was experienced in obtaining the permit for the first 15 tons in the summer of 1916. The application therefor was made in July) but the shipment did not go forward until September, 1916. There is no criticism of the defendant in error not shipping the balance prior to November, 1916. Permits could not be obtained after November, 1916. It was not possible to obtain the permit for 100 tons when the 15 tons were shipped unless the entire 100 tons were shipped in one lot and on that vessel. The permit had to name the ship and describe the goods, and it was understood from the beginning that the 100 tons were not to be shipped as one lot, but were to go forward in small carload lots. The direction for shipment from the Gotthardt corporation and the Bachmans company expressly directed the defendant in error' to ship the goods in three or four different lots. There could be no default in the delivery after November 14, 1916, when the assignor of the plaintiff in error advised the defendant in error not to ship unless the British Admiralty gave a permit: After that day they would not give a permit; therefore the ship would not accept the goods and the defendant in error was not obliged to deliver goods at the steamer dock under the circumstances. The assignors of the plaintiff in error were in default on February 1, 1917. At the time of the assignment to Spieler by Gotthardt and Bachmans corporations, there was no contract right of recovery against the defendant in error to be assigned. On June 29, 1917, when demand was made by Spieler for the delivery in New York City of the rope, there had been such unreasonable delay— from November 14,1916, until June 29, 1917 that, even if the shipping permit had been available then, the defendant in error was excused from performance. Earnshaw v. United States, 146 U. S. 60, 13 S. Ct. 14, 36 L. Ed. 887; Jaslow v. Waterbury (C. C. A.) 296 F. 363; Edwards Mfg. Co. v. Bradford Co. (C. C. A.) 294 F. 176. We have examined the other errors assigned, where claim is made that error was committed in the admission and exclusion of evidence, but we find no force in the arguments advanced. Judgment affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_frivol	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits?" 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". Thomas A. DaBOUL, Petitioner and Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 24705. United States Court of Appeals, Ninth Circuit. July 6, 1970. Thomas A. DaBoul, in pro per. Johnnie M. Walters, Asst. Atty. Gen., Tax Division, Dept, of Justice, K. Martin Worthy, Chief Counsel, I. R. S., Lee A. Jackson, Elmer J. Kelsey, Richard Farber, Dept, of Justice, Washington, D. C., for appellee. Before CHAMBERS and MERRILL, Circuit Judges, and BYRNE, District Judge. PER CURIAM: The appeal is dismissed as legally frivolous. The issuance of a statutory notice of deficiency by the commissioner (which was never issued in this case) is necessary before the tax court has jurisdiction. See Corbett v. Frank, 9 Cir., 293 F.2d 501. If DaBoul was entitled to any relief, he should have proceeded in some United States district court. Question: Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits? A. No B. Yes C. Mixed answer D. Issue not discussed 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. FEDERAL ELECTION COMMISSION v. MASSACHUSETTS CITIZENS FOR LIFE, INC. No. 85-701. Argued October 7, 1986 Decided December 15, 1986 Brennan, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, an opinion of the Court with respect to Parts III-B and III-C, in which Marshall, Powell, O’Connor, and Scalia, JJ., joined, and an opinion with respect to Part III-A, in which Marshall, Powell, and Scalia, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 265. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which White, Blackmun, and Stevens, JJ., joined, post, p. 266. White, J., filed a separate statement, post, p. 271. Charles N. Steele argued the cause for appellant. With him on the briefs was Richard B. Bader. Francis H. Fox argued the cause for appellee. With him on the brief was E. Susan Garsh. Roger M. Witten, William T. Lake, Carol F. Lee, and Archibald Cox filed a brief for Common Cause as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Burt Neuborne, and Jack Novik; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Chamber of Commerce of the United States by Judith K. Richmond, Stephen A. Bokat, Robin S. Conrad, and Jan W. Baran; for the Home Builders Association of Massachusetts by Wayne S. Henderson; for the National Rifle Association of America by James J. Featherstone and Richard E. Gardiner; and for Joseph M. Scheidler et al. by Edward 'R. Grant and Maura K. Quinlan. Jane E. Kirtley, David Barr, Nancy H. Hendry, J. Laurent Scharff, and Bruce W. Sanford filed a brief for the Reporters Committee for Freedom of the Press et al. as amici curiae. Justice Brennan announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, and III-C, and an opinion with respect to Part III-A, in which Justice Marshall, Justice Powell, and Justice Scalia join. The questions for decision here arise under §316 of the Federal Election Campaign Act (FECA or Act), 90 Stat. 490, as renumbered and amended, 2 U. S. C. §441b. The first question is whether appellee Massachusetts Citizens for Life, Inc. (MCFL), a nonprofit, nonstock corporation, by financing certain activity with its treasury funds, has violated the restriction on independent spending contained in § 441b. That section prohibits corporations from using treasury funds to make an expenditure “in connection with” any federal election, and requires that any expenditure for such purpose be financed by voluntary contributions to a separate segregated fund. If appellee has violated § 441b, the next question is whether application of that section to MCFL’s conduct is constitutional. We hold that the appellee’s use of its treasury funds is prohibited by §441b, but that §441b is unconstitutional as applied to the activity of which the Federal Election Commission (FEC or Commission) complains. J — < □> MCFL was incorporated m January 1973 as a nonprofit, nonstock corporation under Massachusetts law. Its corporate purpose as stated in its articles of incorporation is: “To foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities and in addition to engage in any other lawful act or activity for which corporations may be organized... App. 84. MCFL does not accept contributions from business corporations or unions. Its resources come from voluntary donations from “members,” and from various fundraising activities such as garage sales, bake sales, dances, raffles, and picnics. The corporation considers its “members” those persons who have either contributed to the organization in the past or indicated support for its activities. Appellee has engaged in diverse educational and legislative activities designed to further its agenda. It has organized an ecumenical prayer service for the unborn in front of the Massachusetts Statehouse; sponsored a regional conference to discuss the issues of abortion and euthanasia; provided speakers for discussion groups, debates, lectures, and media programs; and sponsored an annual March for Life. In addition, it has drafted and submitted legislation, some of which has become law in Massachusetts; sponsored testimony on proposed legislation; and has urged its members to contact their elected representatives to express their opinion on legislative proposals. MCFL began publishing a newsletter in January 1973. It was distributed as a matter of course to contributors, and, when funds permitted, to noncontributors who had expressed support for the organization. The total distribution of any one issue has never exceeded 6,000. The newsletter was published irregularly from 1973 through 1978: three times in 1973, five times in 1974, eight times in 1975, eight times in 1976, five times in 1977, and four times in 1978. Id., at 88. Each of the newsletters bore a masthead identifying it as the “Massachusetts Citizens for Life Newsletter,” as well as a volume and issue number. The publication typically contained appeals for volunteers and contributions and information on MCFL activities, as well as on matters such as the results of hearings on bills and constitutional amendments, the status of particular legislation, and the outcome of refer-enda, court decisions, and administrative hearings. Newsletter recipients were usually urged to contact the relevant decisionmakers and express their opinion. B In September 1978, MCFL prepared and distributed a “Special Edition” prior to the September 1978 primary elections. While the May 1978 newsletter had been mailed to 2,109 people and the October 1978 newsletter to 3,119 people, more than 100,000 copies of the “Special Edition” were printed for distribution. The front page of the publication was headlined “EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE,” and readers were admonished that “[n]o pro-life candidate can win in November without your vote in September.” “VOTE PRO-LIFE” was printed in large bold-faced letters on the back page, and a coupon was provided to be clipped and taken to the polls to remind voters of the name of the “pro-life” candidates. Next to the exhortation to vote “pro-life” was a disclaimer: “This special election edition does not represent an endorsement of any particular candidate.” Id., at 101. To aid the reader in selecting candidates, the flyer listed the candidates for each state and federal office in every voting district in Massachusetts, and identified each one as either supporting or opposing what MCFL regarded as the correct position on three issues. A “y” indicated that a candidate supported the MCFL view on a particular issue and an “n” indicated that the candidate opposed it. An asterisk was placed next to the names of those incumbents who had made a “special contribution to the unborn in maintaining a 100% pro-life voting record in the state house by actively supporting MCFL legislation.” While some 400 candidates were running for office in the primary, the “Special Edition” featured the photographs of only 13. These 13 had received a triple “y” rating, or were identified either as having a 100% favorable voting record or as having stated a position consistent with that of MCFL. No candidate whose photograph was featured had received even one “n” rating. The “Special Edition” was edited by an officer of MCFL who was not part of the staff that prepared the MCFL newsletters. The “Special Edition” was mailed free of charge and without request to 5,986 contributors, and to 50,674 others whom MCFL regarded as sympathetic to the organization’s purposes. The Commission asserts that the remainder of the 100,000 issues were placed in public areas for general distribution, but MCFL insists that no copies were made available to the general public. The “Special Edition” was not identified on its masthead as a special edition of the regular newsletter, although the MCFL logotype did appear at its top. The words “Volume 5, No. 3, 1978” were apparently handwritten on the Edition submitted to the FEC, but the record indicates that the actual Volume 5, No. 3, was distributed in May and June 1977. The corporation spent $9,812.76 to publish and circulate the “Special Edition,” all of which was taken from its general treasury funds. A complaint was filed with the Commission alleging that the “Special Edition” was a violation of §441b. The complaint maintained that the Edition represented an expenditure of funds from a corporate treasury to distribute to the general public a campaign flyer on behalf of certain political candidates. The FEC found reason to believe that such a violation had occurred, initiated an investigation, and determined that probable cause existed to believe that MCFL had violated the Act. After conciliation efforts failed, the Commission filed a complaint in the District Court under § 437g(a)(6)(A), seeking a civil penalty and other appropriate relief. Both parties moved for summary judgment. The District Court granted MCFL’s motion, holding that: (1) the election publications could not be regarded as “expenditures” under §441b(b)(2); (2) the “Special Edition” was exempt from the statutory prohibition by virtue of § 431(9)(B)(i), which in general exempts news commentary distributed by a periodical publication unaffiliated with any candidate or political party; and (3) if the statute applied to MCFL, it was unconstitutional as a violation of the First Amendment. 589 F. Supp. 646, 649 (Mass. 1984). On appeal, the Court of Appeals for the First Circuit held that the statute was applicable to MCFL, but affirmed the District Court’s holding that the statute as so applied was unconstitutional. 769 F. 2d 13 (1985). We granted certiorari, 474 U. S. 1049 (1986), and now affirm. r-H hH We agree with the Court of Appeals that the “Special Edition” is not outside the reach of §441b. First, we find no merit in appellee’s contention that preparation and distribution of the “Special Edition” does not fall within that section’s definition of “expenditure.” Section 441b(b)(2) defines “contribution or expenditure” as the provision of various things of value “to any candidate, campaign committee, or political party or organization, in connection with any election...” (emphasis added). MCFL contends that, since it supplied nothing to any candidate or organization, the publication is not within § 441b. However, the general definitions section of the Act contains a broader definition of “expenditure,” including within that term the provision of anything of value made “for the purpose of influencing any election for Federal office... 2 U. S. C. § 431(9)(A)(i) (emphasis added). Since the language of the statute does not alone resolve the issue, we must look to the legislative history of §441b to determine the scope of the term “expenditure.” That history clearly confirms that § 441b was meant to proscribe expenditures in connection with an election. We have exhaustively recounted the legislative history of the predecessors of this section in prior decisions. See Pipefitters v. United States, 407 U. S. 385, 402-409 (1972); United States v. Automobile Workers, 352 U. S. 567, 570-587 (1957). This history makes clear that Congress has long regarded it as insufficient merely to restrict payments madadirectly to candidates or campaign organizations. The first explicit expression of this came in 1947, when Congress passed the Taft-Hartley Act, ch. 120, §304, 61 Stat. 136, 159, as amended, 18 U. S. C. §610 (1970 ed.), the criminal statute prohibiting corporate contributions and expenditures to candidates. The statute as amended forbade any corporation or labor organization to make a “contribution or expenditure in connection with any election...” for federal office. The 1946 Report of the House Special Committee to Investigate Campaign Expenditures explained the rationale for the amendment, noting that it would undermine the basic objective of § 610 “if it were assumed that the term ‘making any contribution' related only to the donating of money directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to prohibit the contributing direct to a candidate and yet permit the expenditure of large sums in his behalf?” H. R. Rep. No. 2739, 79th Cong., 2d Sess., 40, quoted in Automobile Workers, supra, at 581. During the legislative debate on the bill, Senator Taft was asked whether § 610 permitted a newspaper published by a railway union to put out a special edition in support of a political candidate, or whether such activity would be considered a political expenditure. The Senator replied: “If it were supported by union funds contributed by union members as union dues it would be a violation of the law, yes. It is exactly as if a railroad itself, using its stockholders’ funds, published such an advertisement in the newspaper supporting one candidate as against another....” 93 Cong. Rec. 6436-6437 (1947). United States v. CIO, 335 U. S. 106 (1948), narrowed the scope of this prohibition, by permitting the use of union funds to publish a special edition of the weekly CIO News distributed to union members and purchasers of the issue. In Automobile Workers, supra, however, we held that a union was subject to indictment for using union dues to sponsor political advertisements on commercial television. Distinguishing CIO, we stated that the concern of the statute “is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party.” 352 U. S., at 589. The Federal Election Campaign Act enacted the prohibition now found in § 441b. This portion of the Act simply ratified the existing understanding of the scope of § 610. See Pipefitters, supra, at 410-411. Representative Hansen, the sponsor of the provision, declared: “The effect of this language is to carry out the basic intent of section 610, which is to prohibit the use of union or corporate funds for active electioneering directed at the general public on behalf of a candidate in a Federal election.” 117 Cong. Rec. 43379 (1971). The Representative concluded: “The net effect of the amendment, therefore, is to tighten and clarify the provisions of section 610 of title 18, United States Code, and to codify the case law.” Ibid. Thus, the fact that § 441b uses the phrase “to any candidate... in connection with any election,” while § 610 provided “in connection with any primary election,” is not evidence that Congress abandoned its restriction, in force since 1947, on expenditures on behalf of candidates. We therefore find no merit in MCFL’s argument that only payments to a candidate or organization fall within the scope of § 441b. Appellee next argues that the definition of an expenditure under § 441b necessarily incorporates the requirement that a communication “expressly advocate” the election of candidates, and that its “Special Edition” does not constitute express advocacy. The argument relies on the portion of Buckley v. Valeo, 424 U. S. 1 (1976), that upheld the disclosure requirement for expenditures by individuals other than candidates and by groups other than political committees. See 2 U. S. C. § 434(c). There, in order to avoid problems of overbreadth, the Court held that the term “expenditure” encompassed “only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U. S., at 80 (footnote omitted). The rationale for this holding was: “[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various issues, but campaigns themselves generate issues of public interest.” Id., at 42 (footnote omitted). We agree with appellee that this rationale requires a similar construction of the more intrusive provision that directly regulates independent spending. We therefore hold that an expenditure must constitute “express advocacy” in order to be subject to the prohibition of § 441b. We also hold, however, that the publication of the “Special Edition” constitutes “express advocacy.” Buckley adopted the “express advocacy” requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons. We therefore concluded in that case that a finding of “express advocacy” depended upon the use of language such as “vote for,” “elect,” “support,” etc., Buckley, supra, at 44, n. 52. Just such an exhortation appears in the “Special Edition.” The publication not only urges voters to vote for “pro-life” candidates, but also identifies and provides photographs of specific candidates fitting that description. The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than “Vote for Smith” does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy. The disclaimer of endorsement cannot negate this fact. The “Special Edition” thus falls squarely within § 441b, for it represents express advocacy of the election of particular candidates distributed to members of the general public. Finally, MCFL argues that it is entitled to the press exemption under 2 U. S. C. § 431(9)(B)(i) reserved for “any news story, commentary, or editorial distributed through the facilities of any... newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.” MCFL maintains that its regular newsletter is a “periodical publication” within this definition, and that the “Special Edition” should be regarded as just another issue in the continuing newsletter series. The legislative history on the press exemption is sparse; the House of Representatives’ Report on this section states merely that the exemption was designed to “make it plain that it is not the intent of Congress in the present legislation to limit or burden in any way the first amendment freedoms of the press or of association. [The exemption] assures the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.” H. R. Rep. No. 93-1239, p. 4 (1974). We need not decide whether the regular MCFL newsletter is exempt under this provision, because, even assuming that it is, the “Special Edition” cannot be considered comparable to any single issue of the newsletter. It was not published through the facilities of the regular newsletter, but by a staff which prepared no previous or subsequent newsletters. It was not distributed to the newsletter’s regular audience, but to a group 20 times the size of that audience, most of whom were members of the public who had never received the newsletter. No characteristic of the Edition associated it in any way with the normal MCFL publication. The MCFL masthead did not appear on the flyer, and, despite an apparent belated attempt to make it appear otherwise, the Edition contained no volume and issue number identifying it as one in a continuing series of issues. MCFL protests that determining the scope of the press exemption by reference to such factors inappropriately focuses on superficial considerations of form. However, it is precisely such factors that in combination permit the distinction of campaign flyers from regular publications. We regard such an inquiry as essential, since we cannot accept the notion that the distribution of such flyers by entities that happen to publish newsletters automatically entitles such organizations to the press exemption. A contrary position would open the door for those corporations and unions with in-house publications to engage in unlimited spending directly from their treasuries to distribute campaign material to the general public, thereby eviscerating § 441b’s prohibition. In sum, we hold that MCFL’s publication and distribution of the “Special Edition” is in violation of § 441b. We therefore turn to the constitutionality of that provision as applied to appellee. Ill A Independent expenditures constitute expression “‘at the core of our electoral process and of the First Amendment freedoms.’” Buckley, 424 U. S., at 39 (quoting Williams v. Rhodes, 393 U. S. 23, 32 (1968)). See also FEC v. National Conservative Political Action Committee, 470 U. S. 480, 493 (1985) (NCPAC) (independent expenditures “produce speech at the core of the First Amendment”). We must therefore determine whether the prohibition of § 441b burdens political speech, and, if so, whether such a burden is justified by a compelling state interest. Buckley, supra, at 44-45. The FEC minimizes the impact of the legislation upon MCFL’s First Amendment rights by emphasizing that the corporation remains free to establish a separate segregated fund, composed of contributions earmarked for that purpose by the donors, that may be used for unlimited campaign spending. However, the corporation is not free to use its general funds for. campaign advocacy purposes. While that is not an absolute restriction on speech, it is a substantial one. Moreover, even to speak through a segregated fund, MCFL must make very significant efforts. If it were not incorporated, MCFL’s obligations under the Act would be those specified by § 434(c), the section that prescribes the duties of “[e]very person (other than a political committee).” Section 434(c) provides that any such person that during a year makes independent expenditures exceeding $250 must: (1) identify all contributors who contribute in a given year over $200 in the aggregate in funds to influence elections, § 434(c)(1); (2) disclose the name and address of recipients of independent expenditures exceeding $200 in the aggregate, along with an indication of whether the money was used to support or oppose a particular candidate, § 434(c)(2)(A); and (3) identify any persons who make contributions over $200 that are earmarked for the purpose of furthering independent expenditures, § 434(c)(2)(C). All unincorporated organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates, are subject only to these regulations. Because it is incorporated, however, MCFL must establish a “separate segregated fund” if it wishes to engage in any independent spending whatsoever. § § 441b(a), (b)(2)(C). Since such a fund is considered a “political committee” under the Act, § 431(4)(B), all MCFL independent expenditure activity is, as a result, regulated as though the organization’s major purpose is to further the election of candidates. This means that MCFL must comply with several requirements in addition to those mentioned. Under § 432, it must appoint a treasurer, § 432(a); ensure that contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the amount of contribution, § 432(b)(2); see that its treasurer keeps an account of every contribution regardless of amount, the name and address of any person who makes a contribution in excess of $50, all contributions received from political committees, and the name and address of any person to whom a disbursement is made regardless of amount, § 432(c); and preserve receipts for all disbursements over $200 and all records for three years, §§ 432(c),(d). Under §433, MCFL must file a statement of organization containing its name, address, the name of its custodian of records, and its banks, safety deposit boxes, or other depositories, §§ 433(a),(b); must report any change in the above information within 10 days, § 433(c); and may dissolve only upon filing a written statement that it will no longer receive any contributions nor make disbursements, and that it has no outstanding debts or obligations, § 433(d)(1). Under § 434, MCFL must file either monthly reports with the FEC or reports on the following schedule: quarterly reports during election years, a pre-election report no later than the 12th day before an election, a postelection report within 30 days after an election, and reports every 6 months during nonelection years, §§ 434(a)(4)(A),(B). These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate’s authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. § 434(b). In addition, MCFL may solicit contributions for its separate segregated fund only from its “members,” §§441b(b)(4)(A), (C), which does not include those persons who have merely contributed to or indicated support for the organization in the past. See FEC v. National Right to Work Committee, 459 U. S. 197, 204 (1982). It is evident from this survey that MCFL is subject to more extensive requirements and more stringent restrictions than it would be if it were not incorporated. These additional regulations may create a disincentive for such organizations to engage in political speech. Detailed record-keeping and disclosure obligations, along with the duty to appoint a treasurer and custodian of the records, impose administrative costs that many small entities may be unable to bear. Furthermore, such duties require a far more complex and formalized organization than many small groups could manage. Restriction of solicitation of contributions to “members” vastly reduces the sources of funding for organizations with either few or no formal members, directly limiting the ability of such organizations to engage in core political speech. It is not unreasonable to suppose that, as in this case, an incorporated group of like-minded persons might seek donations to support the dissemination of their political ideas and their occasional endorsement of political candidates, by means of garage sales, bake sales, and raffles. Such persons might well be turned away by the prospect of complying with all the requirements imposed by the Act. Faced with the need to assume a more sophisticated organizational form, to adopt specific accounting procedures, to file periodic detailed reports, and to monitor garage sales lest nonmembers take a fancy to the merchandise on display, it would not be surprising if at least some groups decided that the contemplated political activity was simply not worth it. Thus, while §441b does not remove all opportunities for independent spending by organizations such as MCFL, the avenue it leaves open is more burdensome than the one it forecloses. The fact that the statute’s practical effect may be to discourage protected speech is sufficient to characterize §441b as an infringement on First Amendment activities. In Freedman v. Maryland, 380 U. S. 51 (1965), for instance, we held that the absence of certain procedural safeguards rendered unconstitutional a State’s film censorship program. Such procedures were necessary, we said, because, as a practical matter, without them “it may prove too burdensome to seek review of the censor’s determination.” Id., at 59. Speiser v. Randall, 357 U. S. 513 (1958), reviewed a state program under which taxpayers applying for a certain tax exemption bore the burden of proving that they did not advocate the overthrow of the United States and would not support a foreign government against this country. We noted: “In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.” Id., at 526. The same may be said of §441b, for its practical effect on MCFL in this case is to make engaging in protected speech a severely demanding task. B When a statutory provision burdens First Amendment rights, it must be justified by a compelling state interest. Williams v. Rhodes, 393 U. S., at 31; NAACP v. Button, 371 U. S. 415, 438 (1963). The FEC first insists that justification for §441b’s expenditure restriction is provided by this Court’s acknowledgment that “the special characteristics of the corporate structure require particularly careful regulation.” National Right to Work Committee, supra, at 209-210. The Commission thus relies on the long history of regulation of corporate political activity as support for the application of § 441b to MCFL. Evaluation of the Commission’s argument requires close examination of the underlying rationale for this longstanding regulation. We have described that rationale in recent opinions as the need to restrict “the influence of political war chests tunneled through the corporate form,” NCPAC, 470 U. S., at 501; to “eliminate the effect of aggregated wealth on federal elections,” Pipefitters, 407 U. S., at 416; to curb the political influence of “those who exercise control over large aggregations of capital,” Automobile Workers, 352 U. S., at 585; and to regulate the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization,” National Right to Work Committee, 459 U. S., at 207. This concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas. It acknowledges the wisdom of Justice Holmes’ observation that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market....” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., joined by Brandeis, J., dissenting). Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace. Political “free trade” does not necessarily require that all who participate in the political marketplace do so with exactly equal resources. See NCPAC, supra (invalidating limits on independent spending by political committees); Buckley, 424 U. S., at 39-51 (striking down expenditure limits in 1971 Campaign Act). Relative availability of funds is after all a rough barometer of public support. The resources in the treasury of a business corporation, however, are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas. By requiring that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending, § 441b seeks to prevent this threat to the political marketplace. The resources available to this fund, as opposed to the corporate treasury, in fact reflect popular support for the political positions of the committee. Pipefitters, supra, acknowledged this objective of § 441b in noting the statement of Representative Hansen, its sponsor, that the “ ‘underlying theory’ ” of this regulation “ ‘is that substantial general purpose treasuries should not be diverted to political purposes,’” and that requiring funding by voluntary contributions would ensure that “‘the money collected is that intended by those who contribute to be used for political purposes and not money diverted from another source.’” 407 U. S., at 423-424 (quoting 117 Cong. Rec. 43381 (1971)). See also Automobile Workers, supra, at 582 (Congress added proscription on expenditures to Corrupt Practices Act “to protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power”). The expenditure restrictions of §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas. Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes. Groups such as MCFL, however, do not pose that danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace. While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of “traditional corporatio[n] organized for economic gain,” NCPAC, supra, at 500, that has been the focus of regulation of corporate political activity. National Right to Work Committee does not support the inclusion of MCFL within § 441b’s restriction on direct independent spending. That case upheld the application to a nonprofit corporation of a different provision of §441b: the limitation on who can be solicited for contributions to a political committee. However, the political activity at issue in that case was contributions, as the committee had been established for the purpose of making direct contributions to political candidates. 459 U. S., at 200. We have consistently held that restrictions on contributions require less com-polling justification than restrictions on independent spending. NCPAC, 470 U. S. 480 (1985); California Medical Assn. v. FEC, 453 U. S. 182, 194, 196-197 (1981); Buckley, supra, at 20-22. In light of the historical role of contributions in the corruption of the electoral process, the need for a broad prophylactic rule was thus sufficient in National Right to Work Committee to support a limitation on the ability of a committee to raise money for direct contributions to candidates. The limitation on solicitation in this case, however, means that nonmember corporations can hardly raise any funds at all to engage in political speech warranting the highest constitutional protection. Regulation that would produce such a result demands far more precision than §441b provides. Therefore, the desirability of a broad prophylactic rule cannot justify treating alike business corporations and appellee in the regulation of independent spending. The Commission next argues in support of §441b that it prevents an organization from using an individual’s money for purposes that the individual may not support. We acknowledged the legitimacy of this concern as to the dissenting stockholder and union member in National Right to Work Committee, 459 U. S., at 208, and in Pipefitters, 407 U. S., at 414-415. But such persons, as noted, contribute investment funds or union dues for economic gain, and do not necessarily authorize the use of their money for political ends. Furthermore, because such individuals depend on the organization for income or for a job, it is not enough to tell them that any unhappiness with the use of their money can be redressed simply by leaving the corporation or the union. It was thus wholly reasonable for Congress to require the establishment of a separate political fund to which persons can make voluntary contributions. This rationale for regulation is not compelling with respect to independent expenditures by appellee. Individuals who contribute to appellee are fully aware of its political purposes, and in fact contribute precisely because they support those purposes. It is true that a contributor may not be aware of the exact use to which his or her money ultimately may be put, or the specific candidate that it may be used to support. However, individuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction. Any contribution therefore necessarily involves at least some degree of delegation of authority to use such funds in a manner that best serves the shared political purposes of the organization and contributor. In addition, an individual desiring more direct control over the use of his or her money can simply earmark the contribution for a specific purpose, an option whose availability does not depend on the applicability of § 441b. Cf. § 434(c)(2)(C) (entities other than political committees must disclose names of those persons making earmarked contributions over $200). Finally, a contributor dissatisfied with how funds are used can simply stop contributing. The Commission maintains that, even if contributors may be aware that a contribution to appellee will be used for political purposes in general, they may not wish such money to be used for electoral campaigns in particular. That is, persons may desire that an organization use their contributions to 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:
sc_issue_3	Q	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. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. KENDRICK et al. No. 87-253. Argued March 30, 1988 Decided June 29, 1988 Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and Kennedy, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 622. Kennedy, J., filed a concurring opinion, in which Scalia, J., joined, post, p. 624. Blackmun, J., filed a dissenting opinion, in which Brennan,. Marshall, and Stevens, JJ., joined, post, p. 625. Solicitor General Fried argued the cause for appellant in Nos. 87-253 and 87-431, and for the federal appellee in No. 87-462. With him on the briefs were Assistant Attorney General Willard, Acting Assistant Attorney General Spears, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Cynkar, Lawrence S. Robbins, Michael Jay Singer, Jay S. Bybee, and Theodore C. Hirt. Michael W. McConnell argued the cause for appellant in No. 87-775. With him on the briefs were Edward R. Grant, Clarke D. Forsythe, Paul Arneson, and Michael J. Woodruff. Janet Benshoof argued the cause for appellees in Nos. 87-253, 87-431, and 87-775 and appellants in No. 87-462. With her on the briefs were Lynn M. Paltrow, Nan D. Hunter, Rachael N. Pine, and Bruce J. Ennis, Jr. Together wnth No. 87-431, Bowen, Secretary of Health and Human Services v. Kendrick et al.. No. 87-462, Kendrick et al. v. Bowen, Secretary of Health and Human Services, et al., and No. 87-775, United Families of America v. Kendrick et al., also on appeal from the same court. Briefs of amici curiae urging reversal were filed for the Attorney General of Arizona et al. by Gary B. Born and James S. Campbell; for the Catholic League for Religious and Civil Rights et al. by Steven Frederick McDowell; for the Institute for Youth Advocacy by Gregory A. Loken; for the National Jewish Commission on. Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the Rutherford Institute et al. by John W. Whitehead, David E. Moms, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, William Bonner, John F. Southivorth, Jr., and W. Charles Bundren; and for the United States Catholic Conference by Mark E. Chopko and Philip H. Hams. Briefs of amici curiae urging affirmance were filed for the American Public Health Association et al. by John H. Hall, Nadine Taub, and Judith Levin; for the Baptist Joint Committee on Public Affairs et al. by Oliver S. Thomas; for the Committee for Public Education and Religious Liberty by Leo Pfeffer; for the Council on Religious Freedom by Lee Boothby, -Robert W. Nixon, and Rolland Truman; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell, David H. Remes, and Herman Schwartz; and for the NOW Legal Defense and Education Fund et al. by Sarah E. Bums and Marsha Levick. Briefs of amici curiae were filed for the Anti-Defamation League of B’nai B’rith et al. by Ruti G. Teitel, Justin J. Finger, Jeffrey P. Sinen-sky, Meyer Eisenberg, and Steven M. Freeman; for -Catholic Charities, U. S. A., et al. by Patrick Francis Geary; and for the Unitarian Univer-salist Association et al. by Patricia Hennessey. Chief Justice Rehnquist delivered the opinion of the Court. This litigation involves a challenge to a federal grant program that provides funding for services relating to adolescent sexuality and pregnancy. Considering the federal statute both “on its face” and “as applied,” the District Court ruled that the statute violated the Establishment Clause of the First Amendment insofar as it provided for the involvement of religious organizations in the federally funded programs. We conclude ^ however, that the statute is not unconstitutional on its face, and that a determination of whether any of the- grants made pursuant to the statute violate the Establishment Clause requires further proceedings in the District Court. I The Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U. S. C. §300z et seq. (1982 ed. and Supp. IV), was passed by Congress in 1981 in response to the “severe adverse health, social, and economic consequences” that often follow pregnancy and childbirth among unmarried adolescents. 42 U. S. C. §300z(a)(5) (1982 ed., Supp. IV). Like its predecessor, the Adolescent Health Services and Pregnancy. Prevention and Care Act of 1978, Pub. L. 95-626, Tit. VI, 92 Stat., 3595-3601 (Title VI), the AFLA is essentially a scheme for providing grants to public or nonprofit private organizations or agencies “for services and research in the area of premarital adolescent sexual relations and pregnancy.” S. Rep. No. 97-161, p~. 1 (1981) (hereinafter Senate Report). These grants are intended to serve several purposes, including the promotion of “self discipline and other prudent approaches to the problem of adolescent premarital sexual relations,” § 300z(b)(l), the promotion of adoption as an alternative for adolescent parents, § 300z(b)(2), the establishment of new approaches to the delivery of care services for pregnant adolescents, §300z(b)(3), and the support of research and demonstration projects “concerning the societal causes and consequences of adolescent premarital sexual relations, contraceptive use, pregnancy, and child rearing,” § 300z(b)(4). In pertinent part, grant recipients are to provide two types of services: “care services,” for the provision of care to pregnant adolescents and adolescent parents, § 300z-l(a)(7), and “prevention services,” for the prevention of adolescent sexual relations, §300z-l(a)(8). While the AFLA leaves it up to the Secretary of Health and Human Services (the Secretary) to define exactly what-types of services a grantee must provide, see §§300z-l (a)(7), (8), 300z-l(b), the statute contains a listing of “necessary services” that may be funded. These services include pregnancy testing and maternity counseling, adoption counseling and referral services, prenatal and postnatal health care, nutritional information, counseling, child care, mental health services, and perhaps most importantly for present purposes, “educational services relating to’family life and problems associated with adolescent premarital sexual relations,” §300z-l(a)(4). In drawing up the AFLA and determining what services to provide under the Act, Congress was well aware that “the problems of adolescent premarital sexual relations, pregnancy, and parenthood are multiple and complex.” § 300z(a) (8)(A). Indeed, Congress expressly recognized that legislative or governmental action alone would be insufficient: “[S]uch problems are best approached through a variety of integrated and essential services provided to adolescents and their families by other family members, religious and charitable organizations, voluntary associations, and other groups in the private sector as well'as services provided by publicly sponsored initiatives.” § 300z(a)(8)(B). Accordingly, the AFLA expressly states that federally provided services in this area should promote the involvement of parents, and should “emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups.” §300z(a)(10)(C). The AFLA implements this goal by providing in § 300z-2 that demonstration projects funded by the government “shall use such methods as will strengthen the capacity of families to deal with the sexual behavior, pregnancy, or parenthood of adolescents and to make use of support systems such as other family members, friends, religious and charitable organizations, -and voluntary associations.” In addition, AFLA requires grant applicants, among other things, to describe how they will, “as appropriate in the provision of services[,] involve families of adolescents[, and] involve religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives.” § 300z-5(a)(21). This broad-based involvement of groups outside of the government was intended by Congress to “establish better coordination, integration, and linkages” among existing programs in the community, §300z(b)(3) (1982 ed., Supp. IV), to aid in the development of “strong family values and close family ties,” §300z(a)(10)(A), and to “help adolescents and their families deal with complex issues of adolescent premarital sexual relations and the consequences of such relations.” §300z(a)(10)(C). In line with its purposes, the AFLA also imposes limitations on the use of funds by grantees. First, the AFLA expressly states that no funds provided for demonstration projects under the statute may be used for family planning services (other than counseling and referral services) unless appropriate family planning services are not otherwise available in the community. § 300z-3(b)(l). Second, the AFLA restricts the awarding of grants to “programs or projects which do not provide abortions or abortion counseling or referral,” except that the program may provide referral for abortion counseling if the adolescent and her parents request such referral. §300z-10(a). Finally, the AFLA states that “grants may be made only to projects or programs which do not advocate, promote, or encourage abortion.” § 300z-I0(a). Since 1981, when the AFLA was adopted, the Secretary has received 1,088 grant applications and awarded 141 grants. Brief for Federal Appellant 8. Funding has gone to a wide variety of recipients, including state and local health agencies, private-hospitals, community health associations, privately operated health care centers, and community and charitable organizations. It is undisputed that a number of grantees or subgrantees were organizations with institutional ties to religious denominations. See App. 748-756 (listing grantees). In 1983, this lawsuit against the Secretary was filed in the United States District Court for the District of Columbia by appellees, a group of federal taxpayers, clergymen, and the American Jewish Congress. Seeking both declaratory and injunctive relief, appellees challenged the constitutionality of the AFLA on the grounds that on its face and as applied the statute violates the Religion Clauses of the First Amendment. Following cross-motions for summary judgment, the District Court held for appellees and declared that the AFLA was invalid both on its face and as applied “insofar as religious organizations are involved in carrying out the programs and purposes of the Act.” 657 F. Supp. 1547, 1570 (DC 1987). The court first found that under Flast v. Cohen, 392 U. S. 83 (1968), appellees had standing to challenge the statute both on its face and as applied. Turning to the merits, the District Court applied the three-part test for Establishment Clause cases set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971). The court concluded that the AFLA has a valid secular purpose: the prevention of social and economic injury caused by teenage pregnancy and premarital sexual relations. In the court’s view, however, the AFLA does not survive the second prong of the Lemon test because it has the “direct and immediate” effect of advancing religion insofar as it expressly requires grant applicants to describe how they will involve, religious organizations in the provision of services. § 300z-5(a)(21)(B). The statute also permits religious organizations to be grantees and “envisions a direct role for those organizations in the education and counseling components of AFLA grants.” 657 F. Supp., at 1562. As written, the AFLA makes it possible for religióusly affiliated grantees to teach adolescents on issues.that can be considered “fundamental elements of religious doctrine.” The AFLA does all this without imposing any restriction whatsoever against the teaching of “religion qua religion” or the inculcation of religious beliefs in federally funded programs. As. the District Court put it, “[t]o presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic.” Id., at 1563 (citing Grand Rapids School District v. Ball, 473 U. S. 373 (1985)). The District Court then concluded that the statute as applied also runs afoul of the Lemon effects test. The evidence presented by appellees revealed that AFLA grants had gone to various organizations that were affiliated with religious denominations and that had corporate requirements that the organizations abide by religious doctrines. Other AFLA grantees were- not explicitly affiliated with organized religions, but were “religiously inspired and dedicated to teaching the dogma that inspired them.” 657 F. Supp., at 1564. In the District Court’s view, the record clearly established that the AFLA, as it has been administered by the Secretary, has in fact directly advanced religion, provided funding for institutions that wére “pervasively sectarian,” or allowed federal funds to be used for education and counseling that “amounts to the teaching of religion.” Ibid. As to. the entanglement prong of Lemon, the court ruled that because AFLA funds are used largely for counseling and teaching, it would require overly intrusive monitoring or oversight to ensure that religion is not advanced by religiously affiliated AFLÁ grantees. Indeed, the court felt that “it is impossible to comprehend entanglement more extensive and continuous than that necessitated by the AFLA.” 657 F. Supp., at 1568. In a separate order, filed August 13, 1987, the District Court ruled that the “constitutionally infirm language of the AFLA, namely its references to ‘religious organizations,’” App. to Juris. Statement in No. 431, p. 53a, is severable from the Act pursuant to Alaska Airlines, Inc. v. Brock, 480 U. S. 678 (1987). The court also denied the Secretary’s Federal Rule of Civil Procedure 59(e) motion to clarify what the court meant by “religious organizations” for purposes of determining the scope of its injunction. On the same day that this order was entered, appellants docketed their appeal on the merits directly with this Court pursuant to 28 U. S. C. § 1252. A separate appeal from the District Court’s August 13 order was also docketed, as was a cross-appeal by appel-lees on the severability issue. On November 9, 1987, we noted probable jurisdiction in all three appeals and consolidated the cases for argument. 484 U. S. 942 (1987). II The District Court in this lawsuit held the AFLA unconstitutional both on its face and as applied. Few of our cases in the Establishment Clause area have explicitly distinguished between facial challenges to a statute and attacks on the statute as applied. Several cases have clearly involved challenges to a statute “on its face.” For example, in Edwards v. Aguillard, 482 U. S. 578 (1987), we considered the validity of the Louisiana “Creationism Act,” finding the Act “facially invalid.” Indeed, in that case it was clear that only a facial challenge could have been considered, as the Act had not been implemented. Id., at 581, n. 1. Other cases, as well, have considered the validity of statutes without the benefit of a record as to how the statute had actually been applied. See Wolman v. Walter, 433 U. S. 229 (1977); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973). In other cases we have, in the course of determining the constitutionality of a statute, referred not only to the language of the statute but also to the manner in which it had been administered in practice. Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472, 479 (1973); Meek v. Pittenger, 421 U. S. 349 (1975). See also Grand Rapids School District v. Ball, supra, at 377-379; Aguilar v. Felton, 473 U. S. 402 (1985). In several cases we have expressly recognized that an otherwise valid statute authorizing grants might be challenged on the grounds that the award of a grant in a particular case would be impermissible. Hunt v. McNair, 413 U. S. 734 (1973), involved a challenge to a South Carolina statute that provided for the issuance of revenue bonds to assist “institutions of higher learning” in constructing new facilities.. The plaintiffs in that case did not contest the validity of the statute as a whole, but contended only that a statutory grant to a religiously affiliated college would be invalid. Id., at 736. In Tilton v. Richardson, 403 U. S. 672 (1971), the Court reviewed a federal statute authorizing construction grants to colleges exclusively for secular educational purposes. We rejected the contention that the statute was invalid- “on its face” and “as applied” to the four church-related colleges that were named as defendants in the case. However, we did leave open the possibility that the statute might authorize grants which could be invalid, stating that “[individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess” sectarian characteristics that might make a grant of aid to the institution constitutionally impermissible. Id., at 682. See also Roemer v. Maryland Bd. of Public Works, 426 U. S. 736, 760-761 (1976) (upholding a similar statute authorizing grants to colléges against a “facial” attack and pretermitting the question whether “particular applications may result in unconstitutional use of funds”). There is, then, precedent in this area of constitutional law for distinguishing between the validity of the statute on its face and its validity in particular applications. Although the Court’s opinions have not even adverted to (to say nothing of explicitly delineated) the consequences of this distinction between “on its face” and “as applied” in this context, we think they do justify the District Court’s approach in separating the two issues as it did here. This said, we turn to consider whether the District Court was correct in concluding that the AFLA was unconstitutional on its face. As in previous cases involving facial challenges on Establishment Clause grounds, e. g., Edwards v. Aguillard, supra; Mueller v. Allen, 463 U. S. 388 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971). Under the Lemon standard, which guides “[t]he general nature of our. inquiry in this area,” Mueller v. Allen, supra, at 394, a court may invalidate a statute only if it is motivated wholly by an impermissible purpose, Lynch v. Donnelly, 465 U. S. 668, 680 (1984); Stone v. Graham, 449 U. S. 39, 41 (1980), if its primary effect is the advancement of religion, Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 708 (1985), or if it requires excessive entanglement between church and state, Lemon, supra, at 613; Walz v. Tax Comm’n, 397 U. S. 664, 674 (1970). We consider each of these factors in turn. As we see it, it is clear from the face of the statute that the AFLA was motivated primarily, if not entirely, by a legitimate secular purpose — the elimination or reduction of social and economic problems caused by teenage sexuality, pregnancy, and parenthood. See §§300z(a), (b) (1982 ed. and Supp. IV). Appellees cannot, and do not, dispute that, on the whole, religious concerns were not the sole motivation behind the Act, see Lynch, supra, at 680, nor can it be said that the AFLA lacks a legitimate secular purpose, see Edwards v. Aguillard, 482 U. S., at 585. In the court below, however, appellees argued that the real purpose of the AFLA could only be understood in reference to the AFLA’s predecessor, Title VI. Appellees contended that Congress had an impermissible purpose in adopting the AFLA because it specifically amended Title VI to increase the role of religious organizations in the programs sponsored by the Act. In particular, they pointed to the fact that the AFLA, unlike Title VI, requires grant applicants to describe how they will involve religious organizations in the programs funded by the AFLA. § 300z-5(a)(21)(B). The District Court rejected this argument,- however, reasoning that even if it is assumed that the AFLA was motivated in part by improper concerns, the parts of the statute to which appellees object were also motivated by other, entirely legitimate secular concerns. We agree with this conclusion. As the District Court correctly pointed out, Congress amended Title VI in a number of ways, most importantly for present purposes by attempting to enlist the aid of not only “religious organizations,” but also “family members...., charitable organizations, voluntary associations, and other groups in the private sector,” in addressing the problems associated with adolescent sexuality. § 300z(a)(8)(B); see also §§300z-5(a)(21)(A), (B), Cf. Title VI, § 601(a) (5) (“[T]he problems of adolescent [sexuality]... are best approached through a variety of integrated and essential services”). Congress’ decision to amend the statute in this way reflects the entirely appropriate aim of increasing broad-based community involvement “in helping adolescent boys and girls understand the implications of premarital sexual relations, pregnancy, and parenthood.” See Senate Report, at 2, 15-16. In adopting the AFLA, Congress expressly intended to expand the services already authorized by Title VI, to insure the increased participation of parents in education and support services, to increase the flexibility of the programs, and to spark the development of new, innovative services. Id., at 7-9. These are all legitimate secular goals that are furthered by the AFLA’s additions to Title VI, including the challenged provisions that refer to religious organizations. There simply is no evidence that Congress’ “actual purpose” in passing the AFLA was one of “endorsing religion.” See Edwards v. Aguillard, 482 U. S., at 589-594. Nor are we in a position to doubt that Congress’ expressed purposes are “sincere and not a sham.” Id., at 587. As usual in Establishment Clause cases, see, e. g., Grand Rapids School District v. Ball, 473 U. S. 373 (1985); Mueller, supra, the more difficult question is whether the primary effect of the challenged statute is impermissible. Before we address this question, however, it is useful to review again just what the AFLA sets out to do. Simply stated, it authorizes grants to institutions that are capable of providing certain care and prevention services to adolescents. Because of the complexity of the problems that Congress sought to remedy, potential grantees are required to describe how they will involve other organizations, including religious organizations, in the programs funded by the federal grants. § 300z-5(a)(21)(B); see also § 300z-2(a). There is no requirement in the Act that grantees be affiliated with any religious denomination, although the Act clearly does not rule out grants to religious organizations. The services to be provided under the AFLA are not religious in character, see n. 2, supra, nor has there been any suggestion that religious institutions or organizations with religious ties are uniquely well qualified to carry out those services. Certainly it is true that a substantial part of the services listed as “necessary services” under the Act involve some sort of education or counseling, see, e. g., §§300z-l(a)(4)(D), (G), (H), (J), (L), (M), (0), but there is nothing inherently religious about these activities and appellees do not contend that, by themselves, the AFLA’s “necessary services” somehow have the primary effect of advancing religion. Finally, it is clear that the AFLA takes a particular approach toward dealing with adolescent sexuality and pregnancy — for example, two of its stated purposes are to “promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations,” §300z(b)(l), and to “promote adoption as an alternative,” 300z(b)(2) — but again, that approach is not inherently religious * although it may coincide with the approach taken by certain religions. Given this statutory framework, there are two ways in which the statute, considered “on its face,” might be said to have the impermissible primary effect of advancing religion. First, it can be argued that the AFLA advances religion by expressly recognizing that “religious organizations have a role to play” in addressing the problems associated with teenage sexuality. Senate Report, at 16. In this view, even if no religious institution receives aid or funding pursuant to the AFLA, the statute is invalid under the Establishment Clause because, among other things, it expressly enlists the involvement of religiously affiliated organizations in the federally subsidized programs, it endorses religious solutions to the problems addressed by the Act, or it creates symbolic ties between church and state. Secondly, it can be argued that the AFLA is invalid on its face because it allows religiously affiliated organizations to participate as grantees or subgrantees in AFLA programs. From this standpoint, the Act is invalid because it authorizes direct federal funding of religious organizations which, given the AFLA’s educational function and the fact that the AFLA’s “viewpoint” may coincide with the grantee’s “viewpoint” on sexual matters, will result unavoidably in the impermissible “inculcation” of religious beliefs in the context of a federally funded program. We consider the former objection first. As noted previously, the AFLA expressly mentions the role of religious organizations in four places. It states (1) that the problems of teenage sexuality are “best approached through a variety of integrated and essential services provided to adolescents and their families by[, among others,] religious organizations,” §300z(a)(8)(B), (2) that federally subsidized services “should emphasize the provision of support by[, among others,] religious and charitable organizations,” §300z(a)(10)(C), (3) that AFLA programs “shall use such methods as will strengthen the capacity of families... to make use of support systems such as... religious... organizations,” §300z-2(a), and (4) that grant applicants shall describe how they will involve religious organizations, among other groups, in the provision of services under the Act. § 300z-5(a)(21)(B). Putting aside for the moment the possible role of religious organizations as grantees, these provisions of the statute reflect at most Congress’ considered judgment that religious organizations can help solve the problems to which the AFLA is addressed. See Senate Report, at 15-16. Nothing in our previous eases prevents Congress from making such a judgment or from recognizing the important part that religion or religious organizations may play in resolving certain, secular problems. Particularly when, as Congress found, “prevention of adolescent sexual activity and adolescent pregnancy depends primarily upon developing strong family values and close family ties,” § 300z(a)(10)(A), it seems quite sensible for Congress to recognize that religious organizations can influence values and can have some influence on family life, including parents’ relations with their adolescent children. To the extent that this congressional recognition has any effect of advancing religion, the effect is at most “incidental and remote.” See Lynch, 465 U. S., at 683; Estate of Thornton v. Caldor, Inc., 472 U. S., at 710; Nyquist, 413 U. S., at 771. In addition, although the AFLA does require potential grantees to describe how they will involve religious organizations in the provision, of services under the Act, it also requires grantees to describe the involvement of “charitable organizations, voluntary associations, and other groups in the private sector,” § 300z-5(a)(21)(B). In our view, this reflects the statute’s successful maintenance of “a course of neutrality among religions, and between religion and non-religion,” Grand Rapids School District v. Ball, 473 U. S., at 382. This brings us to the second ground for objecting to the AFLA: the fact that it allows religious institutions' to participate as recipients of federal funds. The AFLA defines an “eligible grant recipient” as a “public or nonprofit private organization or agency” which demonstrates the capability of providing the requisite services. § 300z — 1(a)(3). As this provision would indicate, a fairly wide spectrum' of organizations is eligible to apply for and receive funding under the Act, and nothing on the face of the Act suggests it is anything but neutral with respect to the grantee’s status as a sectarian or purely secular institution. See Senate Report, at 16 (“Religious affiliation is not a criterion for selection as a grantee...”). In this regard, then, the AFLA is similar to other statutes that this Court has upheld against Establishment Clause challenges in the past. In Roemer v. Maryland Bd. of Public Works, 426 U. S. 736 (1976), for example, we upheld a Maryland statute that provided annual subsidies directly to qualifying colleges and universities in the State, including religiously affiliated institutions. As the plurality stated, “religious institutions need not be quarantined from public benefits that are neutrally available to all.” Id., at 746 (discussing Everson v. Board of Education, 330 U. S. 1 (1947) (approving busing services equally available to both public and private school children), and Board of Education v. Allen, 392 U. S. 236 (1968) (upholding state provision of secular textbooks for both public and private school students)). Similarly, in Tilton v. Richardson, 403 U. S. 672 (1971), we approved the federal Higher Educational Facilities Act, which was intended by Congress to.provide construction grants to “all colleges and universities regardless of any affiliation with or sponsorship by a religious body.” Id., at 676. And in Hunt v. McNair, 413 U. S. 734 (1973), we rejected a challenge to a South Carolina statute that made certain benefits “available to all institutions of higher education in South Carolina, whether or not having a religious affiliation.” Id., at 741. In other cases involving indirect grants of state aid to religious institutions, we have found it important that the aid is made available regardless of whether it will ultimately flow to a secular or sectarian institution. See, e. g., Witters v. Washington Dept. of Services for Blind, 474 U. S. 481, 487 (1986); Mueller v. Allen, 463 U. S., at 398; Everson v. Board of Education, supra, at 17-18; Walz v. Tax Comm'n, 397 U. S., at 676. We, note in addition that this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs. To the contrary, in Bradfield v. Roberts, 175 U. S. 291 (1899), the Court upheld an agreement between the Commissioners of the District of Columbia and a religiously affiliated hospital whereby the Federal Government would pay for the construction of a new building on the grounds of the hospital. In effect, the Court refused to hold that the mere fact that the hospital was “conducted under the auspices of the Roman Catholic Church” was sufficient to alter the purely secular legal character of the corporation, id., at 298, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter. In the Court’s view, the giving of federal aid to the hospital was entirely consistent with the Establishment-Clause, and the fact that the hospital was religiously affiliated was “wholly immaterial.” Ibid. The propriety of this holding, and the long history of cooperation and interdependency between governments and charitable or religious organizations is reflected in the legislative history of the AFLA. See S. Rep. No. 98-496, p. 10 (1984) (“Charitable organizations with religious affiliations historically have provided social services with the support of their communities and without controversy”). Of course, even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government aid to religiously affiliated institutions does not have the primary effect of advancing religion. One way in which direct government aid might have that effect is if the aid flows to institutions that are “pervasively sectarian.” We stated in Hunt that “[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission _” 413 U. S., at 743. The reason for this is that there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s “religious mission.” See Grand Rapids School District v. Ball, 473 U. S., at 385 (discussing how aid to religious schools may impermissibly advance religion). Accordingly, a relevant factor in deciding whether a particular statute on its face can be said to have the improper effect of advancing religion is the determination of whether, and to what extent, the statute directs government aid to pervasively sectarian institutions. In Grand Rapids School District, for example, the Court began its “effects” inquiry with “a consideration of the nature of the institutions in which the [challenged] programs operate.” Id., at 384. In this lawsuit, nothing on the face of the AFLA indicates that a significant proportion of the federal funds will be disbursed to “pervasively sectarian” institutions. Indeed, the contention that there is a substantial risk of such institutions receiving direct aid is undercut by the AFLA’s facially neutral grant requirements, the wide spectrum of public ánd private organizations which are capable of meeting the AFLA’s requirements, and the fact that, of the eligible religious institutions, many will not deserve the label of “pervasively sectarian.” This is not a case like Gmnd Rapids, where the challenged aid flowed almost entirely to parochial schools. In that case the State’s “Shared Time” program was directed specifically at providing certain classes for nonpublic schools, and 40 of 41 of the schools that actually participated in the program were found to be “pervasively sectarian.” Id., at 385. See also Nyquist, 413 U. S., at 768 (“‘all or practically all’ ” of the schools entitled to receive grants were religiously affiliated); Meek v. Pittenger, 421 U. S., at 371. Instead, this litigation more closely resembles Tilton and Roemer, where it was foreseeable that some proportion of the recipients of government aid would be religiously affiliated, but that only a small portion of these, if any, could be considered “pervasively sectarian.” In those cases we upheld the challenged statutes on their face and as applied to the institutions named in the complaints, but left open the consequences which would ensue if they allowed federal aid to go to institutions that were in fact pervasively sectarian. Tilton, 403 U. S., at 682; Roemer, 426 U. S., at Question: What is the issue of the decision? A. First Amendment, miscellaneous (cf. comity: First Amendment) B. commercial speech, excluding attorneys C. libel, defamation: defamation of public officials and public and private persons D. libel, privacy: true and false light invasions of privacy E. legislative investigations: concerning internal security only F. federal or state internal security legislation: Smith, Internal Security, and related federal statutes G. loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher) H. loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court) I. loyalty oath: government employees J. loyalty oath: political party K. loyalty oath: teachers L. security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements M. conscientious objectors (cf. military draftee or military active duty) to military service N. campaign spending (cf. governmental corruption): O. protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees P. free exercise of religion Q. establishment of religion (other than as pertains to parochiaid:) R. parochiaid: government aid to religious schools, or religious requirements in public schools S. obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment T. obscenity, federal Answer:
sc_issue_2	41	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. OWENS et al. v. OKURE No. 87-56. Argued November 1, 1988 Decided January 10, 1989 Peter H. Schiff, Deputy Solicitor General of New York, argued the cause for petitioners. With him on the briefs were Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, and Charles R. Fraser, Assistant Attorney General. Kenneth Kimerling argued the cause for respondent. With him on the brief were Arthur N. Eisenberg, John A. Powell, Steven Shapiro, Helen Hershkoff, and Joseph M. Brennan. Briefs of amici curiae urging reversal were filed for the State of Nebraska et al. by Robert M. Spire, Attorney General of Nebraska, and Mark D. Starr, Assistant Attorney General, Joseph B. Meyer, Attorney General of Wyoming, John Steven Clark, Attorney General of Arkansas, Robert H. Henry, Attorney General of Oklahoma, and David Lee, Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, Donald J. Hanaway, Attorney General of Wisconsin, T. Travis Medlock, Attorney General of South Carolina, Robert T. Stephan, Attorney General of Kansas, and William L. Webster, Attorney General of Missouri; and for the city of New York by Peter L. Zimroth, Leonard J. Koemer, Edward F. X. Hart, and John P. Woods. Justice Marshall delivered the opinion of the Court. In Wilson v. Garcia, 471 U. S. 261 (1985), we held that courts entertaining claims brought under 42 U. S. C. § 1983 should borrow the state statute of limitations for personal injury actions. This case raises the question of what limitations period should apply to a § 1983 action where a State has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions. We hold that the residual or general personal injury statute of limitations applies. I On November 13, 1985, respondent Tom U. U. Okure brought suit in the District Court for the Northern District of New York, seeking damages under §1983 from petitioners Javan Owens and Daniel G. Lessard, two State University of New York (SUNY) police officers. Okure alleged that, on January 27, 1984, the officers unlawfully arrested him on the SUNY campus in Albany and charged him with disorderly conduct. The complaint stated that Okure was “forcibly transported” to a police detention center, “battered and beaten by [the police officers] and forced to endure great emotional distress, physical harm, and embarrassment.” App. 5-6. As a result of the arrest and beating, Okure claimed, he “sustained personal injuries, including broken teeth and a sprained finger, mental anguish, shame, humiliation, legal expenses and the deprivation of his constitutional rights.” Id., at 6. The officers moved to dismiss the complaint, which had been filed 22 months after the alleged incident, as time barred. They contended that § 1983 actions were governed by New York’s 1-year statute of limitations covering eight intentional torts: “assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, [and] a violation of the right of privacy.” N. Y. Civ. Prac. Law § 215(3) (McKinney 1972). The District Court denied the motion to dismiss. 625 F. Supp. 1568 (1986). Borrowing “a narrowly drawn statute which is applicable only to certain intentional torts,” id., at 1570, the court stated, was inconsistent with this Court’s endorsement of “a simple, broad characterization of all §1983 claims.” Ibid, (citing Wilson, supra, at 272). Moreover, a 1-year statute of limitations on § 1983 claims “would improperly restrict the scope of § 1983 and controvert federal policy.” 625 F. Supp., at 1571. The court concluded that New York’s 3-year residual statute of limitations for claims of personal injury not embraced by specific statutes of limitations, N. Y. Civ. Prac. Law §214(5) (McKinney Supp. 1988), was applicable to § 1983 actions, and that Okure’s complaint was therefore timely. The court then certified an interlocutory appeal on this question pursuant to 28 U. S. C. § 1292(b) (1982 ed., Supp. IV) and Rule 5(a) of the Federal Rules of Appellate Procedure. The Court of Appeals for the Second Circuit granted permission for the appeal and affirmed. 816 F. 2d 45 (1987). It stated that Wilson’s description of § 1983 claims as general personal injury actions required a statute of limitations “expansive enough to accommodate the diverse personal injury torts that section 1983 has come to embrace.” Id., at 48. As between the two New York statutes of limitations, the court observed: “By nature, section 214(5) is general; section 215(3) is more specific and exceptional. This dichotomy survives no matter how many similar intentional torts are judicially added to those enumerated in section 215(3).” Ibid. The Court of Appeals favored § 214(5) for another reason: its 3-year period of limitations “more faithfully represents the federal interest in providing an effective remedy for violations of civil rights than does the restrictive one year limit.” Id., at 49. Injuries to personal rights are not “necessarily apparent to the victim at the' time they are inflicted,” the court explained, and “[e]ven where the injury itself is obvious, the constitutional dimensions of the tort may not be.” Id., at 48. The dissent argued that § 1983 actions are best analogized to intentional torts, id., at 51, and that, because §215(3) governs “almost every intentional injury to the person,” id., at 50, it is more appropriate for §1983 claims than §214(5), which it contended had been confined primarily to negligence claims. Ibid. The dissent added that using § 215(3)’s 1-year limitations period is not “inherently inconsistent with the policies underlying the Civil Rights Act.” Id., at 54. We granted certiorari, 485 U. S. 958 (1988), and now affirm. II A In this case, we again confront the consequences of Congress’ failure to provide a specific statute of limitations to govern § 1983 actions. Title 42 U. S. C. § 1988 endorses the borrowing of state-law limitations provisions where doing so is consistent with federal law; § 1988 does not, however, offer any guidance as to which state provision to borrow. To fill this void, for years we urged courts to select the state statute of limitations “most analogous,” Board of Regents, Univ. of New York v. Tomanio, 446 U. S. 478, 488 (1980), and “most appropriate,” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975), to the particular § 1983 action, so long as the chosen limitations period was consistent with federal law and policy. Occidental Life Ins. Co. of California v. EEOC, 432 U. S. 355, 367 (1977); Johnson, supra, at 465. The practice of seeking state-law analogies for particular § 1983 claims bred confusion and inconsistency in the lower courts and generated time-consuming litigation. Some courts found analogies in common-law tort, others in contract law, and still others in statutory law. Often the result had less to do with the general nature of § 1983 relief than with counsel’s artful pleading and ability to persuade the court that the facts and legal theories of a particular § 1983 claim resembled a particular common-law or statutory cause of action. Consequently, plaintiffs and defendants often had no idea whether a federal civil rights claim was barred until a court ruled on their case. Predictability, a primary goal of statutes of limitations, was thereby frustrated. In Wilson, we sought to end this “conflict, confusion and uncertainty.” 471 U. S., at 266. Recognizing the problems inherent in the case-by-case approach, we determined that 42 U. S. C. §1988 requires courts to borrow and apply to all § 1983 claims the one most analogous state statute of limitations. Ibid. See id., at 275 (“[F]ederal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach”); see also id., at 272 (“[A] simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose”). We Concluded, based upon the legislative history of § 1983 and the wide array of claims now embraced by that provision, that § 1983 “conferfs] a general remedy for injuries to personal rights.” Id., at 278. Because “§ 1983 claims are best characterized as personal injury actions,” we held that a State’s personal injury statute of limitations should be applied to all § 1983 claims. Id., at 280. As the instant case indicates, Wilson has not completely eliminated the confusion over the appropriate limitations period for § 1983 claims. In States where one statute of limitations applies to all personal injury claims, Wilson supplies a clear answer. Courts considering § 1983 claims in States with multiple statutes of limitations for personal injury actions, however, have differed over how to determine which statute applies. Several Courts of Appeals have held that the appropriate period is that which the State assigns to certain enumerated intentional torts. These courts have reasoned that intentional torts are most closely analogous to the claims Congress envisioned being brought under the Civil Rights Act, and to the paradigmatic claims brought today under § 1983. Other Courts of Appeals, by contrast, have endorsed the use of the state residuary statute of limitations for § 1983 actions. These courts have observed that § 1983 embraces a broad array of actions for injury to personal rights, and that the intentional tort is therefore too narrow an analogy to a § 1983 claim. The Court of Appeals for the Second Circuit followed this second approach when it concluded that New York’s statute of limitations for certain enumerated intentional torts did not reflect the diversity of § 1983 claims. B In choosing between the two alternatives endorsed by the Courts of Appeals — the intentional torts approach and the general or residual personal injury approach — we are mindful that ours is essentially a practical inquiry. Wilson, 471 U. S., at 272. Our decision in Wilson that one “simple broad characterization” of all § 1983 actions was appropriate under § 1988 was, after all, grounded in the realization that the potential applicability of different state statutes of limitations had bred chaos and uncertainty. Id., at 275; see also Burnett v. Grattan, 468 U. S. 42, 50 (1984) (courts selecting a state statute of limitations for § 1983 actions must “tak[e] into account practicalities that are involved in litigating federal civil rights claims”); accord, Felder v. Casey, 487 U. S. 131 (1988). Thus, our task today is to provide courts with a rule for determining the appropriate personal injury limitations statute that can be applied with ease and predictability in all 50 States. A rule endorsing the choice of the state statute of limitations for intentional torts would be manifestly inappropriate. Every State has multiple intentional tort limitations provisions, carving up the universe of intentional torts into different configurations. In New York, for example, §215(3), the intentional tort statute endorsed by petitioners, covers eight enumerated torts. See supra, at 237. But different provisions cover other specified intentional torts. Malpractice actions are governed by one provision; certain veterans’ claims, by another. In Michigan, separate statutes of limitations govern “assault, battery, or false imprisonment,” Mich. Comp. Laws §600.5805(2) (1979), “malicious prosecution,” §600.5805(3), “libel or slander,” §600.5805(7), and “all other actions to recover damages for the death of a person or for injury to a person §600.5805(8). In Ohio, separate provisions govern “bodily injury,” Ohio Rev. Code Ann. §2305.10 (Supp. 1987), “libel, slander, malicious prosecution, or false imprisonment,” §2305.11, and “assault or battery,” §2305.111. Similarly, in Pennsylvania, separate provisions govern “libel, slander or invasion of privacy,” 42 Pa. Cons. Stat. § 5523(1) (1988), “assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process,” §5524(1), “injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another,” § 5524(2), and “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct.” §5524(7). Were we to call upon courts to apply the state statute of limitations governing intentional torts, we would succeed only in transferring the present confusion over the choice among multiple personal injury provisions to a choice among multiple intentional tort provisions. In marked contrast to the multiplicity of state intentional tort statutes of limitations, every State has one general or residual statute of limitations governing personal injury actions. Some States have a general provision which applies to all personal injury actions with certain specific exceptions. Others have a residual provision which applies to all actions not specifically provided for, including personal injury actions. Whichever form they take, these provisions are easily identifiable by language or application. Indeed, the very idea of a general or residual statute suggests that each State would have no more than one. Potential § 1983 plaintiffs and defendants therefore can readily ascertain, with little risk of confusion or unpredictability, the applicable limitations period in advance of filing a § 1983 action. Petitioners’ argument that courts should borrow the intentional tort limitations periods because intentional torts are most analogous to § 1983 claims fails to recognize the enormous practical disadvantages of such a selection. Moreover, this analogy is too imprecise to justify such a result. In Wilson, we expressly rejected the practice of drawing narrow analogies between § 1983 claims and state causes of action. 471 U. S., at 272. We explained that the Civil Rights Acts provided “[a] unique remedy mak[ing] it appropriate to accord the statute ‘a sweep as broad as its language.’ Because the § 1983 remedy is one that can ‘override certain kinds of state laws,’ Monroe v. Pape, 365 U. S. 167, 173 (1961), and is, in all events, ‘supplementary to any remedy any State might have,’ McNeese v. Board of Education, 373 U. S. 668, 672 (1963), it can have no precise counterpart in state law. Monroe v. Pape, 365 U. S., at 196, n. 5 (Harlan, J., concurring). Therefore, it is ‘the purest coincidence,’ ibid., when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.” Ibid, (footnotes omitted). The intentional tort analogy is particularly inapposite in light of the wide spectrum of claims which § 1983 has come to span. In Wilson, we noted that claims brought under § 1983 include “discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard.” Id., at 273 (footnotes omitted). See also id., at 273, n. 31; Blackmun, Section 1983 and Federal Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?, 60 N. Y. U. L. Rev. 1, 19-20 (1985). Many of these claims bear little if any resemblance to the common-law intentional tort. See Felder v. Casey, 487 U. S., at 146, n. 3. Even where intent is an element of a constitutional claim or defense, the necessary intent is often different from the intent requirement of a related common-law tort. E. g., Hustler Magazine v. Falwell, 485 U. S. 46, 53 (1988) (distinguishing constitutional “malice” in the First Amendment context from common-law “malice”). Given that so many claims brought under § 1983 have no precise state-law analog, applying the statute of limitations for the limited category of intentional torts would be inconsistent with § 1983’s broad scope. We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions. III The Court of Appeals therefore correctly applied New York’s 3-year statute of limitations governing general personal injury actions to respondent Okure’s claim. Our decision in Wilson promised an end to the confusion over what statute of limitations to apply to § 1983 actions; with today’s decision, we hope to fulfill Wilson’s promise. Accordingly, the judgment of the Court of Appeals is Affirmed. New York Civ. Prac. Law §214 provides in relevant part: “The following actions must be commenced within three years: “5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215....” In relevant part, § 1988 provides: “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title ‘CIVIL RIGHTS,’ and of Title ‘CRIMES,’ for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....” 42 U. S. C. § 1988. See Shapiro, Choosing the Appropriate State Statute of Limitations for Section 1983 Claims After Wilson v. Garcia: A Theory Applied to Maryland Law, 16 Balt. L. Rev. 242, 251-256 (1987) (describing different approaches to determining the appropriate statute of limitations for § 1983 actions); Note, Retroactive Application of Wilson v. Garcia: Continued Confusion to a Troubled Topic, 44 Wash. & Lee L. Rev. 135, 135, n. 4 (1987) (same); Comment, Statutes of Limitations in Federal Civil Rights Litigation, 1976 Ariz. S. L. J. 97, 116-126 (same). See Preuit & Mauldin v. Jones, 474 U. S. 1105, 1108 (1986) (White, J., dissenting from denial of certiorari) (“[CJonflicting principles... have determined the statutes of limitations chosen for § 1983 actions in the Tenth Circuit on the one hand and the Fifth and Eleventh Circuits on the other”); Wilson, 471 U. S., at 286-287 (O’Connor, J., dissenting) (anticipating dilemma facing courts in States with more than one statute of limitations for personal injury claims). See, e. g., Mulligan v. Hazard, 777 F. 2d 340 (CA6 1985) (selecting Ohio statute of limitations for libel, slander, assault, battery, malicious prosecution, false imprisonment, and malpractice, and rejecting statute of limitations for bodily injury or for injury to the rights of the plaintiff not enumerated elsewhere), cert. denied, 476 U. S. 1174 (1986); Gates v. Spinks, 771 F. 2d 916 (CA5 1985) (selecting Mississippi statute of limitations for most intentional torts, and rejecting statute for causes of action not otherwise provided for), cert. denied, 475 U. S. 1065 (1986); Jones v. Preuit & Mauldin, 763 F. 2d 1250, 1254 (CA11 1985) (selecting Alabama statute of limitations for actions for “ ‘any trespass to person or liberty, such as false imprisonment or assault and battery,’ ” and rejecting statute for “ ‘any injury to the person or rights of another not arising from contract and not specifically enumerated in this section’ ”), cert. denied, 474 U. S. 1105 (1986). The Fifth and Sixth Circuits, however, on several occasions have departed from this approach. See, e. g., Kline v. North Texas State Univ., 782 F. 2d 1229 (CA5 1986) (selecting Texas statute of limitations for injury done to the person of another); Carroll v. Wilkerson, 782 F. 2d 44, 45 (CA6) (per curiam) (selecting Michigan general personal injury statute of limitations), cert, denied sub nom. County of Wayne v. Wilkerson, 479 U. S. 923 (1986). See, e.g., Meade v. Grubbs, 841 F. 2d 1512, 1523-1524, and 1524, n. 11 (CA10 1988) (selecting Oklahoma statute of limitations for “‘injury to the rights of another, not arising on contract and not hereinafter enumerated,’ ” and rejecting statute for assault or battery); Banks v. Chesapeake & Potomac Tel. Co., 256 U. S. App. D. C. 22, 33, 802 F. 2d 1416, 1427 (1986) (stating in dicta that it “might well” apply District of Columbia statute of limitations for claims not otherwise provided for and rejecting statute for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest, or false imprisonment); Small v. Inhabitants of Belfast, 796 F. 2d 544, 546-547 (CA1 1986) (selecting Maine’s statute of limitations for “ ‘[a]ll civil actions... except as otherwise specifically provided,”’ and rejecting statute for assault and battery, false imprisonment, slander, libel, and medical malpractice); McKay v. Hammock, 730 F. 2d 1367, 1370 (CA10 1984) (en banc) (selecting Colorado statute of limitations for “ ‘[a]ll other actions of every kind for which no other period of limitation is provided by law,’ ” and rejecting statutes for trespass and trespass on the case). See N. Y. Civ. Prac. Law § 214(6) (McKinney Supp. 1988) (3-year statute of limitations covers all malpractice claims not provided for in § 214-a); § 214-a (272-year statute of limitations for all medical, dental, and podiatric malpractice torts); § 214-b (2-year statute of limitations for Vietnam veterans’ claims of exposure to phenoxy herbicides, commonly known as Agent Orange). Thus, it is irrelevant that courts have construed § 215(3) to provide the appropriate limitations period for a few intentional torts that are not enumerated in that statute, see, e. g., Koster v. Chase Manhattan Bank, 609 F. Supp. 1191, 1198 (SDNY 1985) (construing § 215(3) to cover intentional infliction of emotional distress); Rio v. Presbyterian Hospital in City of New York, 561 F. Supp. 325, 328 (SDNY 1983) (construing §215(3) to cover intentional interference with contractual relations); Hansen v. Petrone, 124 App. Div. 2d 782, 508 N. Y. S. 2d 500 (1986) (mem.) (construing § 215(3) to cover abuse of process and intentional infliction of emotional distress); accord, 2 Carmody-Wait 2d § 13.74 (1965); 35 N. Y. Jur., Limitations and Laches § 35, pp. 527-528 (1964). The following nonexhaustive list illustrates the frequency with which States have enacted multiple statutes of limitations governing intentional torts. See, e. g., Ala. Code §§ 6-2-34 (1) (1977) (six years “for any trespass to person or liberty, such as false imprisonment or assault and battery”); Ala. Code §§ 6-2-38 (h), (i), (k), (1) (Supp. 1987) (two years for malicious prosecution, libel or slander, seduction, or any injury to the person, or rights of another not arising from contract and not specifically enumerated); Alaska Stat. Ann. § 09.10.070 (1983) (two years for libel, slander, assault, battery, seduction, false imprisonment); § 09.10.055 (six years for injuries resulting from construction-related torts); Ariz. Rev. Stat. Ann. § 12-541 (1982) (one year for malicious prosecution, false imprisonment, or injuries done to character or reputation of another by libel or slander, seduction); Ariz. Rev. Stat. Ann. § 12-542(2) (Supp. 1988) (two years for “injuries done to the person of another”); Ariz. Rev. Stat. Ann. § 12-551 (1982) (two years for injuries resulting from product liability); Ark. Code Ann. § 16-56-104 (1987) (one year for special actions on the case, criminal conversation, alienation of affection, assault and battery, false imprisonment, slander, libel with special damages); § 16-56-105 (three years for libel); § 16-56-106 (18 months for medical malpractice); § 16-56-112(b)(2) (five years for injuries resulting from construction-related torts); Cal. Civ. Proc. Code Ann. § 340 (West Supp. 1988) (one year for libel, slander, assault, battery, false imprisonment, seduction, injury, or death from wrongful act or neglect); § 340.1 (three years for actions based on incestuous relationship with a minor); Cal. Civ. Proc. Code Ann. § 340.2 (West 1982) (one year for asbestos-related torts); §340.5 (three years for medical malpractice); §340.6 (one year for attorney malpractice); Cal. Civ. Code Ann. §29 (West 1982) (six years for injuries to “[a] child conceived, but not yet bom”); Colo. Rev. Stat. § 13-80-102(a) (1987) (two years for “[t]ort actions, including but not limited to actions for negligence, trespass, malicious abuse of process, malicious prosecution, outrageous conduct, interference with relationships”); Colo. Rev. Stat. § 13-80-102.5 (Supp. 1988) (two years for medical malpractice); Colo. Rev. Stat. § 13-80-103(a) (1987) (one year for assault, battery, false imprisonment, false arrest, libel, slander); D. C. Code § 12-301(4) (1981) (one year for libel, slander, assault, battery, false imprisonment, mayhem, wounding, malicious prosecution, false arrest); § 12-301(8) (three years for actions not otherwise prescribed); Fla. Stat. § 95.11(3)(o) (1987) (four years for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided elsewhere); § 95.11(3)(p) (four years for actions not specifically provided for); §95.U(4)(b) (two years for medical and professional malpractice and wrongful death); Ga. Code Ann. § 9-3-33 (1982) (one year for injury to reputation; two years for injury to the person; four years for injury to the person involving a loss of consortium); Haw. Rev. Stat. § 657-4 (1985) (two years for libel or slander); Haw. Rev. Stat. § 657-7.3 (Supp. 1987) (two to six years for medical torts depending on time of discovery of the injury); 111. Rev. Stat., eh. 110,113-201 (1984) (one year for libel, slander, or publication of matter violating right of privacy); *113-202 (two years for false imprisonment, malicious prosecution, abduction, or seduction, criminal conversation); Kan. Stat. Ann. § 60-513(a)(4) (Supp. 1987) (two years for “injury to the rights of another, not arising on contract, and not herein enumerated”); Kan. Stat. Ann. § 60-514 (1983) (one year for libel, slander, assault, battery, malicious prosecution, or false imprisonment); Ky. Rev. Stat. Ann. §413.120(6) (Baldwin 1988) (five years for “injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated”); §413.135 (five years for injury resulting from construction of improvements to real estate); §§ 413.140(l)(d)-(e) (one year for libel, slander, and malpractice); Me. Rev. Stat. Ann., Tit. 14, §752 (1980) (six years for civil actions except as otherwise specifically provided); § 752(A) (four years for malpractice by design professionals); § 752(B) (two years for injuries suffered during “participation in skiing or hang-gliding or the use of a tramway associated with skiing or hang-gliding”); Me. Rev. Stat. Ann., Tit. 14, §752-C (Supp. 1988) (six years for actions based on sexual act with a minor); § 753 (two years for assault and battery, false imprisonment, slander, libel); Md. Cts. & Jud. Proc. Code Ann. § 5-101 (1984) (three years for all civil actions); § 5-105 (one year for assault, battery, libel, slander); § 5-108 (20 years for injury to person occurring after improvement to realty); Md. Cts. & Jud. Proc. Code Ann. § 5-109 (Supp. 1988) (five years for medical torts); Mass. Gen. Laws § 260:2A (1986) (three years for tort actions except as otherwise provided for); §260:4 (three years for assault, battery, false imprisonment, slander, libel, and malpractice); Mo. Rev. Stat. § 516.120(1) (1986) (five years for all liabilities “except where a different time is herein limited”); §516.140 (two years for libel, slander, assault, battery, false imprisonment, criminal conversation, and malicious prosecution); Neb. Rev. Stat. § 25-207(3) (1985) (four years for “injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated”); § 25-208 (one year for libel, slander, assault and battery, false imprisonment, and malicious prosecution); Nev. Rev. Stat. § 11.190(4)(c) (1987) (two years for libel, slander, assault, battery, false imprisonment, and seduction); § ll.,190(4)(e) (two years for injuries to or death of a person caused by the wrongful act or neglect of another); N. J. Stat. Ann. §2A:14-1 (West 1987) (six years for any tortious injury to the rights of another not stated elsewhere); § 2A:14-2 (two years for injury to the person caused by the wrongful act, neglect, or default of any person); § 2A:14-3 (one year for libel or slander); N. C. Gen. Stat. § 1-52(5) (1988) (three years for “any other injury to the person or rights of another, not arising on contract and not hereafter enumerated”); § 1-54 (one year for libel, slander, assault, battery, or false imprisonment); N. D. Cent. Code § 28-01-16(5) (Supp. 1987) (six years for injury to the person or rights of another not arising under contract, when not otherwise expressly provided); N. D. Cent. Code § 28-01-18(1) (1974) (one year for libel, slander, assault, battery, or false imprisonment); N. D. Cent. Code § 28-01-18(4) (Supp. 1987) (two years for injuries done to the person of another, when death ensues); Okla. Stat., Tit. 12, §95 (Third) (1981) (two years “for injury to the rights of another, not arising on contract, and not hereinafter enumerated”); § 95 (Fourth) (one year for libel, slander, assault, battery, malicious prosecution, or false imprisonment); R. I. Gen. Laws § 9-l-14(a) (1985) (one year for slander); § 9-l-14(b) (three years for injuries to the person); R. I. Gen. Laws § 9-1-14.1 (Supp. 1988) (three years for malpractice); R. I. Gen. Laws § 9-1-14.2 (1985) (three years for Agent Orange-related torts); S. C. Code § 15-3-530(5) (Supp. 1987) (six years for criminal conversation 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_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". COMMISSIONER OF INTERNAL REVENUE v. FERREE. No. 6005. Circuit Court of Appeals, Third Circuit. May 29, 1936. Frank J. Wideman, Asst. Atty. Gen., and Howard P. Locke and Sewall Key, Sp. Assts. to the Atty. Gen., for appellant. John J. Dougherty and John M. Marshall, both of Pittsburgh, Pa., for appellee. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. BUFFINGTON, Circuit Judge. In this case the majority of the Tax Board held with the taxpayer that he had a deductible loss in 1929. The minority held otherwise. Both sides filed enlightening opinions. We agree with the majority, and our reasons for so holding we now set forth. Ferree, the petitioner, owned 1,000 shares of Continental Can, purchased in August, 1929, the certificates of which he kept in a safety deposit box. On December 19, 1929, he sold, through his broker, 200 shares and delivered the certificates for them the next day. On December 27, he instructed his broker to sell the 800 shares “represented by the certificates which remained in his safety deposit box.” On December 30, the broker sold 200 and on December 31, 600 shares, Ferree did not deliver the certificates, but left them where they were. On January 31, 1930, Ferree, through the same broker, bought 500 Continental Can shares, and on February 3, 1,000 shares. .The broker delivered certificates for 700 shares, which Ferree put in his box with the 800 shares remaining there. In his income tax return Ferree deducted the loss amounting to $30,317. The Commissioner, however, claimed that the above transaction was a short sale not completed until the covering purchases in January and February of 1930, and that, therefore, the above loss was not deductible as of 1929. The Board of Tax Appeals upheld the contention of the petitioner that the transaction consisted of a completed sale during 1929 and as such the loss was deductible. The contention of the Commissioner is based upon the fact that the petitioner did not deliver the 800 shares to the broker, and that the broker, to complete the sale, must have bought or “borrowed” other shares, to deliver to his customer. Thus if the broker did buy or borrow other shares, the Commissioner contends that he did not in fact sell the 800 shares in the petitioner’s safety deposit box, but 800 other shares. The Board assumes that the broker did make a delivery to the purchaser as required by the rules of the Stock Exchange. Four members of the Board dissented from the finding that this was not a short sale. There is no dispute that “a short sale is a contract for the sale of shares which the seller does not own or the certificates for which are not within his control so as to be available for delivery at the time when, under the rules of the Exchange, delivery must be made.” Provost v. United States, 269 U.S. 443, 46 S.Ct. 152, 153, 70 L.Ed. 352; Appleby v. Commissioner, 31 B.T.A. 533, points out that a sale of certain shares on December 30, 1930, existed as of that time, though the certificates were not delivered to the broker until January 6, 1931, and the loss was deductible in 1930. Under the Sales Act of Pennsylvania, where the taxpayer lived, and the Uniform Sales Act, the intention of the parties governs. Section 19, rule 1 (69 P.S.Pa. § 143, rule 1) for ascertaining intention reads: “Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or time of delivery, or both, be postponed.” The broker, acting as agent of the petitioner, was authorized to sell the 800 shares identified and was not authorized to sell short. Upon completing the sale, he had a right to demand these identical shares. However, the broker substituted other shares of equal value which was in no way objectionable to the purchaser. The broker still had the right to demand the original 800 shares. However, when the petitioner purchased 1,500 shares of the same stock through him, he merely withheld 800 shares. As the original intention is controlling, these subsequent substitutions do not change the original transaction. It would be meaningless formality to demand that the petitioner hand over the 800 and receive 800 identical shares. However, if the petitioner had handed over the original 800 shares to the broker in January or February and had taken the entire 1,500 shares he had recently purchased, he would have come within Appleby v. Commissioner, supra. This petitioner intended to sell these shares in order to take" a loss. This is justifiable under the statutes. The broker intended to execute the petitioner’s order. The Sales Act allows delay of delivery. The Revenue Act does not prevent the petitioner from keeping 800 shares of stock which he owes to the broker when the broker owes him 800 shares of the same stock. So holding, the judgment of the Tax Board is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_genapel1	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 is to determine the nature of the first listed appellant. Robert W. KNIGHT, Plaintiff, Appellee, v. The TOWN OF GLOCESTER, etc., et al., Defendants, Appellants. No. 86-2129. United States Court of Appeals, First Circuit. Argued Sept. 10, 1987. Decided Oct. 16, 1987. Robert G. Flanders, Jr., with whom Flanders & Medeiros Inc., James T. Murphy, Margaret L. O’Hara and Hanson, Curran & Parks, Providence, R.I., were on brief, for defendants, appellants. Charles Cavas with whom William A. Poore and Hodosh, Spinella & Angelone, Providence, R.I., were on brief, for plaintiff, appellee. Before CAMPBELL, Chief Judge, GARTH, Senior Circuit Judge, and BOWNES, Circuit Judge. Of the Third Circuit, sitting by designation. BOWNES, Circuit Judge. This case involves an attempt by the district court to cut through a Gordian knot of statutory regulations in which plaintiffappellee Robert Knight was entangled. Unfortunately, the cutting of the knot also severed some basic legal principles. Plaintiff was discharged from the Glocester, Rhode Island, Police Department because he could not attain the status of a certified police officer under the pertinent Rhode Island statute. Knight brought suit in federal court alleging jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (violation of civil rights). The gravamen of the complaint is that he had an express or implied contract of employment with the town as a police officer and that he was discharged without cause and in violation of his constitutional right to due process of law. The only issue on appeal is whether the district court’s order “directing the town to take all reasonable steps to enroll Officer Knight in the Police Academy” can stand. We find that it cannot. The Facts Plaintiff started his police career in 1972 as a volunteer constable appointed by the Town Council. He was appointed a permanent part-time patrolman in March of 1975. In November of 1976, he was promoted to sergeant as a part-time officer. Plaintiff became a full-time police officer in June of 1980. Rhode Island General Laws § 42-28-29 (1984 & Supp.1986) provides: Sponsorship of school candidates by city or town. — Candidates meeting the physical, mental and educational requirements of this chapter shall be admitted to the school only upon the request of the appointing authority in the city or town of which the prospective candidate is a resident, and every such application by the appointing authority shall be accompanied by a statement that the candidate has prospects, within the reasonable future, of a permanent appointment to the police force of the city or town sponsoring him; provided, however, that any member of any police department of any city or town accepting the provisions of §§ 42-28-25 to 42-28-31, inclusive, shall be eligible for training and retraining in the school. The next section provides: 42-28-30. Certifícate of completion of training course. — Upon the satisfactory completion of the prescribed course of training the superintendent shall issue to each candidate a certificate of merit and shall forward to the appointing authority certification of the candidate’s qualifications for appointment. Both plaintiff and the town officials understood that these statutory provisions meant that Knight had to complete a training course at a municipal police training school. See R.I. Gen.Laws § 42-28-25. Plaintiff submitted an application to the Rhode Island Municipal Police Academy in August, 1981. The application was rejected in part because the Town, by appointing Knight a permanent officer before he went to the Academy, had waived its right to send him. Additionally, Knight failed to get a chest X-ray properly and no age-limit waiver had been obtained from the Town. Plaintiff reapplied on November 1, 1981, under the aegis of a newly appointed Police Chief, Richard B. Tooher. The Chief endorsed the application and requested a waiver of the age requirement. This application was also rejected; the reasons for the rejection were excluded as hearsay. Chief Tooher then tried unsuccessfully to get plaintiff admitted to the City of Providence Police Academy. The Chief then had plaintiff submit a third application to the Rhode Island Municipal Police Academy. The Chief communicated with the executive director of the Academy and its commission on Standards and Training in aid of plaintiff's application. Plaintiff failed the first three portions of the physical agility test, a prerequisite for admission to the Academy. He left the test site without trying to complete the balance of the test and informed the Academy director that he would not take another test. Because plaintiff was not a certified police officer, he could not sign arrest and search warrants. Plaintiff was supended from his duties with pay and benefits on February 4, 1985. After suspension, Chief Tooher and the Town Solicitor requested that the Academy waive its physical agility test requirements for plaintiff. This request was rejected. The Town Solicitor tried to get plaintiff admitted to the Providence Police Academy, but with no success. The Chief decided that plaintiff should be dismissed from the police force because he could not be admitted to a municipal police training school and become a certified police officer. A letter recommending his discharge was delivered to plaintiff on February 19, 1985. Plaintiff asked for a hearing under the Rhode Island Law Enforcement Officers’ Bill of Rights. R.I.Gen. Laws § 42-28.6-1 to .6-15. The hearing committee ruled that because plaintiff was not a certified permanent police officer, he was not entitled to a hearing on the merits. Plaintiff appealed this ruling to the Rhode Island Superior Court pursuant to R.I.Gen. Laws § 42-28.6-12. That appeal is still pending. After unsuccessfully trying to file a grievance under the collective bargaining agreement, plaintiff commenced this action in federal court. It is agreed that plaintiff had an exemplary record as a police officer. The District Court’s Findings and Rulings The court found, as a matter of law, that plaintiff “had no expectation of permanent employment by the Town of Glocester.” This ruling meant that there was no basis for the civil rights action. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Chongris v. Board of Appeals of Town of Andover, 811 F.2d 36, 43 (1st Cir.1987); Lovelace v. Southeastern Massachusetts University, 793 F.2d 419, 421 (1st Cir.1986). Plaintiff did not appeal this ruling. The court then went on to state: It is perfectly clear to me, however, that the plaintiff has applied for equitable relief; and it is perfectly clear to me that this plaintiff has not been fairly treated in these circumstances, that fairness and equity require that the town do something to seek to remedy the situation____ I’m going to enter an order directing the town to take all reasonable steps to enroll Officer Knight in the police academy. Equity and The Law Although we can understand why the court attempted to find a way out of this Catch 22 situation, its solution is proscribed by the rule that equity must follow the law. “But courts can intervene only where legal rights are invaded or the law violated.” Chapman v. Sheridan-Wyoming Co., 338 U.S. 621, 631, 70 S.Ct. 392, 397, 94 L.Ed. 393 (1950). “Generally [equity’s] jurisdiction depends upon legal obligations, and its decrees can only enforce remedies to the extent and in the mode by law established.” Rees v. City of Watertown, 86 U.S. (19 Wall.) 107, 121, 22 L.Ed. 72 (1873). The principle that equity follows the law has long been recognized in Rhode Island. The maxims, that every right has a remedy, and that where the law does not give redress equity will afford relief, however just in theory, are subordinate to positive institutions, and cannot be applied either to subvert established rules of law, or to give the courts a jurisdiction hitherto unknown. Greene v. Keene, 14 R.I. 388, 395 (1884). Moreover, it would appear that the Town had made reasonable efforts to get plaintiff admitted to a Municipal Police Academy. Finally, we note that plaintiff did not join the Academy as a party to this action. Therefore, that portion of the order of the district court granting equitable relief to plaintiff is vacated. So ordered. No costs on appeal. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT 20, MUSKOGEE, OKLAHOMA; Natalie Sams and F. Clarence Sams, minors who sue by their parents, Mr. and Mrs. Nathan Sams, and Mr. and Mrs. Nathan Sams, individually; Thomas Buckley, Robert Buckley and John Buckley, minors who sue by their parents, Mr. and Mrs. William A. Buckley, and Mr. and Mrs. William Buckley, individually; Jennifer Parker, a minor who sues by her parents, Mr. and Mrs. Kenneth Parker, and Mr. and Mrs. Kenneth Parker, individually; and the Class of all those School Districts, School Children, Parents and Property Owners in the State of Oklahoma who are Similarly Situated with the above Named Plaintiffs, Plaintiffs-Appellants, v. STATE OF OKLAHOMA; State of Oklahoma ex rel. the Commissioners of the Land Office; Jack Blackwell, the County Treasurer of Oklahoma County; Jim Parkinson, the County Treasurer of Tulsa County; and Oscar Thomas, the County Treasurer of Muskogee County, in their official capacities and representing the class of all County Treasurers of Oklahoma, Defendants-Appellees, and Board of Education of Independent School District 1, Sulphur, Oklahoma, et al., Intervenors-Appellees. No. 89-68. United States Court of Appeals Tenth Circuit. April 14, 1969. Rehearing Denied May 5, 1969. Tom R. Mason, Muskogee, Okl., and Maurice H. Merrill, Norman, Okl. (Norman & Wheeler and Bonds, Matthews & Mason, Muskogee, Okl., were with them on the brief), for plaintiffs-appellants. Bert Barefoot, Jr., Oklahoma City, Okl. (C. J. Engling, Asst. Atty. Gen. for State of Oklahoma, was with him on the brief), for defendants-appellees. John A. Claro, Oklahoma City, Okl. (Bert Barefoot, Jr., Edward H. Moler and Barefoot, Moler, Bohanon & Barth, Oklahoma City, Okl., were with him on the brief), for intervenors-appellees other than Independent School Dist. 1 of Tulsa County, Okl. C. H. Rosenstein, Tulsa, Okl. (Rosenstein, Livingston, Fist & Ringold, Tulsa, Okl., were with him on the brief), for intervenor-appellee Independent School Dist. 1 of Tulsa County, Okl. Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges. BREITENSTEIN, Circuit Judge. The claim of the plaintiffs-appellants is that Oklahoma treats them unequally in the distribution of taxes collected for school purposes from utilities operating in more than one county. Jurisdiction is asserted under 28 U.S.C. § 1343(3) in that plaintiffs are deprived of the equal protection guaranteed by the Fourteenth Amendment. A three-judge district court was requested and denied. The trial court dismissed the action for lack of subject-matter jurisdiction and this appeal followed. The action was brought by the Board of Education of a Muskogee, Oklahoma, school district and by parents and taxpayers suing in their own behalf and in behalf of their school children. The defendants are the State of Oklahoma and various state and local officials whose duties relate to the collection and distribution of taxes. Several school districts were permitted to intervene on the side of the defendants. The allegations of the complaint are these. The Oklahoma Constitution, Art. X, § 12a, provides that taxes on utilities operating in more than one county “shall be paid into the Common School Fund * * * of this State.” In Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, the Oklahoma Supreme Court held that this constitutional provision was not self-executing and that in the absence of legislation the county treasurers could not pay into the Common School Fund the mentioned taxes. The Oklahoma legislature has not enacted the necessary implementing legislation. This failure deprives the plaintiffs of equal protection because the children are denied an equal opportunity for education, because the individual taxpayers are required to pay more taxes, and because the school district is denied its “equalized share of the school ad valorem taxes,” assured by Art. X, § 12a. The plaintiffs seek a decree enjoining the county treasurers from paying taxes collected on utilities operating in more than one county to the local school districts, directing the state legislature to enact implementing legislation, and, in the event of such legislation, ordering the Commissioners of the Land Office to apportion. and distribute the taxes throughout the state as other “Common School Funds.” A single judge may dismiss for lack of subject-matter jurisdiction and his determination is made on the basis of the allegations of the complaint. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. His refusal to convene a three-judge court may be reviewed by the court of appeals. Idlewild Bon-Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. If the trial court was correct in holding that subject-matter jurisdiction is not alleged,, there is no need of pursuing further the question of the need for a three-judge court. The complaint before us does not attack the constitutionality of any state statute or of any administrative order. The claims are (1) the decision in Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, that § 12a of the Oklahoma Constitution is not self-executing is wrong, and (2) accepting Linthicum, the state legislature has denied the plaintiffs equal protection by not implementing § 12a. If the complaint is read liberally, it can be taken as an over-all attack on the Oklahoma system of distribution of school funds. If such is the intent, we do not know what law or what official act is relied on as a denial of equal protection. The plaintiffs say that the apportionment decisions, e. g. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and Moss v. Burkhart, W.D.Okl., 220 F.Supp. 149, support their right to a three-judge district court. In those cases the constitutionality of specific state apportionment statutes was attacked. Other decisions cited by plaintiffs are similarly distinguishable. In Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, the charge was that a state statute was unconstitutional. Flast v. Cohen, Secretary of Health, Education, and Welfare, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, was concerned with the constitutionality of a federal statute. King, Commissioner, Department of Pensions and Security v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, related to the constitutionality of a state regulation. The decision in Linthicum that § 12a is not self-executing is an interpretation by the highest court of Oklahoma of the constitution of that state. It is conclusive on the point and is binding on us. Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 477, 57 S.Ct. 857, 81 L.Ed. 1229. The claim that Linthicum was decided wrongly goes to the construction of the state constitution and does not deny a federal constitutional right. We cannot overturn Linthicum. The failure of the legislature to implement § 12a is not the denial of a right, privilege, or immunity secured by the Constitution of the United States. No allegation of the complaint charges that any plaintiff, any group of plaintiffs, or any class which they claim to represent have been discriminated against in the collection and distribution of tax moneys because of race, color, religion, or any other personal attribute. Absent such allegations, the claim is simply that they want a different allocation of the public revenues. In Allied Stores of Ohio, Inc. v. Bowers, Tax Commissioner of Ohio, 358 U.S. 522, 526, 79 S.Ct. 437, 440, 3 L.Ed.2d 480, the Supreme Court said that when the states are dealing with their proper domestic concerns and do not entrench on federal prerogatives or violate the guaranties of the federal constitution, they “have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests.” See also Thompson v. Allen County, 115 U.S. 550, 555 and 556, 6 S.Ct. 140, 29 L.Ed. 472. The question of whether taxes collected from utilities operating in more than one .county should be used in the county where the property is located or distributed generally on some basis to all the counties of the state presents a policy matter for determination by the state — not by the federal judiciary. See McInnis v. Shapiro, N.D.Ill., 293 F.Supp. 327, affirmed sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308. The use of taxes in the county where the taxed property is located does not, of itself, constitute an invidious discrimination or unreasonable classification. We agree with the trial court that subject-matter jurisdiction is not present. The trial court dismissed the State of Oklahoma as a defendant on the ground of sovereign immunity and no express consent to suit. The action was correct. Hamilton Manufacturing Company v. Trustees of the State Colleges in Colorado, 10 Cir., 356 F.2d 599, 601, and cases there cited. Affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_respond1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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". MEDTRONIC, INC., Plaintiff-Appellee, v. Charles F. BENDA, Emil Conde and William C. Cain, Defendants-Appellants. Nos. 82-1021, 81-1212. United States Court of Appeals, Seventh Circuit. Argued June 3, 1982. Decided July 13, 1982. Certiorari Denied Jan. 10, 1983. See 103 S.Ct. 731. Anthony J. Murray, Philip J. Schmidt, Chicago, Ill., F. Joseph Jaskowiak, Hoeppner, Wagner & Evans, Valparaiso, Ind., for defendants-appellants. James B. Loken, Minneapolis, Minn., for plaintiff-appellee. Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and GRANT, Senior District Judge. This.appeal was originally decided by unreported order on July 13, 1982. See Circuit Rule 35. The Court has subsequently decided to issue the decision as an opinion. Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, sitting by designation. GRANT, Senior District Judge. This is a consolidated action brought by Medtronic, Inc. (“Medtronic”) against the defendants, three former employees, seeking to enforce restrictive covenants contained in employment contracts signed by each. The district court entered a detailed set of factual findings (Appendix A) which we fully adopt and incorporate herein. This appeal centers upon the district court’s holding that the restrictive covenants in question are valid and enforceable under Illinois law. Each appellant has filed separate briefs raising every conceivable argument “under the sun.” The following three arguments constitute the crux of their case. 1. The district court’s finding that Medtronic possessed a protectible interest based upon a long-term, near permanent clientele is clearly erroneous. 2. The restrictive covenant is defective in that it contains no geographical limits and the enforcing injunction is vague and overly broad in violation of Fed.R.Civ.P. 65. 3. The injunction entered by the district court is in conflict with the public interest. We reject these arguments and affirm the decision of the district court for the reasons set forth therein. We add the following discussion in response to the specific arguments noted above. I. The district Court explicitly stated that the existence of a protectible employer interest in this case was not based upon the appellants’ acquisition and possession of confidential information, but upon “Medtronic’s long term relationships with its customers.” Mem. Op. at 12. The appellants contend this conclusion is clearly erroneous because Medtronic presented no evidence which supports such a conclusion. They further assert that the evidence establishes the opposite; that many hospitals and physicians became Medtronic’s customers only after the appellants began employment with Medtronic. Thus, they argue, there were no long-term relationships with whom they would not have come in contact except for their employment with Medtronic. The standard of review we are bound to apply was recently summarized by the Supreme Court. In reviewing the factual findings of the District Court, the Court of Appeals was bound by the “clearly erroneous” standard of Rule 52(a), Federal Rules of Civil Procedure, [cite omitted]. That rule recognizes and rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence, [cite omitted]. Because of the deference due the trial judge, unless an appellate court is left with the “definite and firm conviction that a mistake has been committed,” [cite omitted], it must accept the trial court’s findings. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., - U.S. -, -, 102 S.Ct. 2182, 2188, 72 L.Ed.2d 606 (1982) (footnote omitted). While there is evidence indicating that some hospitals and physicians became Medtronic customers only after the appellants joined Medtronic, there also is evidence indicating otherwise. See Rebuttal Testimony of Raich. We are not in the position of substituting our own judgment of the evidence for that of the district court’s. The record contains conflicting evidence on the “long-term, near permanent clientele” issue and the district court reasonably credited evidence adverse to the appellants. We are not left with a “definite and firm conviction that a mistake has been committed” and must, therefore, conclude that the district court’s finding is not clearly erroneous. In this same regard, the appellants challenge the district court’s finding that physicians are Medtronic customers. The record amply supports this conclusion inasmuch as the physicians were the “real” purchasers of the pacemakers even though the formal sale was made, in most cases, to the hospital. The district court correctly focused upon the substance of the sales transactions and not their form. Appellants cannot seriously dispute the fact that it is primarily the physician who influences and even decides which pacemaker from which manufacturer will be purchased by the hospital. Not only is this finding not clearly erroneous, but it is correct. This conclusion is also supported by the decision in Medtronic, Inc. v. Gibbons, 527 F.Supp. 1085, 1094 n.3 (D.Minn.1981), wherein the court stated: The ultimate consumer of pacemakers are cardiac patients, not hospitals or doctors. But the pacemakers are sold by the manufacturers to the hospital where the patient is being treated. The hospital purchases pacemakers on recommendations from a physician or other medical personnel treating a patient. Medtronic’s sales effort focuses on the physicians and medical personnel. Thus, the term “customers” must include not only the hospital, which actually pays for the product, but also the physicians and surgeons who recommend which product to purchase. One last point needs to be addressed. Defendants suggest in their briefs that a “long-term, near permanent clientele” cannot be found to exist unless there is present an exclusive relationship. They argue that inasmuch as hospitals and physicians who were Medtronic customers were free to purchase pacemakers from other manufacturers and did so in some cases, they could not be considered long-term nor permanent. We must reject this argument based upon the authority of Morrison Metalweld Process Corp. v. Valent, 97 Ill.App.3d 373, 52 Ill.Dec. 825, 828-29, 422 N.E.2d 1034, 1037-38 (1981). There is no support for the narrow interpretation asserted by the defendants. Exclusivity is simply not required. For the reasons articulated by the district court as well as those just discussed, we hold that the record in this case sufficiently supports the district court’s finding of a legitimate and protectible employer interest. II. The second argument raised by the defendants is that the restrictive covenant is not reasonable in scope in that it contains no geographical limits. They also argue that the injunctive relief ordered by the district court fails to adequately specify what conduct is prohibited and what conduct is not. Furthermore, they contend that the district court’s order encompasses conduct which the covenant is not intended to prohibit. Appellants are correct in stating that the covenant and the district court’s order contain no geographical limitations. However, this is not fatal in the business context in which this covenant arises. Where the covenant’s restriction relates to the solicitation of customers, the absence of a geographical limitation is not unreasonable. The decisions of the Illinois Appellate Courts in Donald McElroy, Inc. v. Delaney, 72 Ill.App.3d 285, 27 Ill.Dec. 892, 899-900, 389 N.E.2d 1300, 1307-08 (1979) and Wolf & Co. v. Waldron, 51 Ill.App.3d 239, 9 Ill.Dec. 346, 366 N.E.2d 603 (1977), are squarely on point. The one year limitation, in light of the amount of time needed to adequately retrain another salesperson, is also reasonable to protect Medtronic’s interest. The vagueness and overbreadth arguments can for practical purposes be merged in this case. It would be impossible for any court to identify every conceivable act that would be covered by the restrictive covenant. All that is required under Fed.R. Civ.P. 65(d) is for the language of the injunction to be as specific as possible under the totality of the circumstances, such that a reasonable person could understand what conduct is proscribed. City of Mishawaka v. American Electric Power Company, Inc., 616 F.2d 976, 991 (7th Cir. 1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 892, 66 L.Ed.2d 824 (1981). We believe the district court has satisfied this requirement. A plain reading of the injunction reveals that any contacts associated to any degree with the possible sale of pacemakers, with either hospital officials or physicians with whom the appellants had contact in the year prior to their leaving Medtronic, are prohibited. On pages 654 and 655 of its decision, the district court elaborates on the prohibition by identifying several specific acts which are covered. This elaboration helps to clarify the boundaries of the injunction. We believe the injunction is as specifically and clearly framed as possible in light of the commercial environment in which it arises and is being applied. The appellants are placed on adequate notice regarding permissible and impermissible conduct. They are, of course, always free to seek a more detailed statement if they so choose. See American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 171 (2d Cir. 1978). But it is our conclusion that the language of the injunction is sufficiently definite and specific to guide the appellants in their business affairs and to apprise them of the injunction’s scope and to safeguard the interests of all parties. Their claim to the contrary is really an unsuccessful attempt to subvert the covenant’s prohibitions which are.reasonable and enforceable in this case. III. The last argument made by the appellants is based upon public policy considerations. They claim that public health and welfare are seriously endangered by the limitations placed upon their business activities, thereby rendering the restrictive covenant unreasonable. There is evidence in the record which tends to support appellants’ factual assertion that hospitals and physicians who otherwise would seek assistance from the appellants would consider it a loss not to be able to continue to seek assistance from the appellants. But we cannot accept appellants’ proposition that this evidence establishes that the public interest is significantly harmed as a result. There is nothing to indicate that the quality of medical care would suffer by enforcement of the restrictive covenant. This same argument was made and rejected in Medtronic, supra, 527 F.Supp. at 1095. The reasoning of the district court there is equally applicable to this case. Gibbons argues that the public interest of making sure that all patients receive the best medical care available would be seriously hampered by restraining Gibbons. He would be limited in assisting doctors in implantations of pacemakers and from giving seminars to nurses and other hospital personnel. Although Gibbons does perform some beneficial public services by taking part in surgeries and giving seminars, he is primarily a salesman, not a doctor or an educator. His activities contribute to improving the quality of health care, but his temporary absence from a portion of his sales area would not seriously deteriorate the quality of health care in that area. In addition, Gibbons argues that restraining him may tend to reduce the competition for biomedical devices in his sales area. However, there is substantial competition in the pacemaker industry, and Pacesetter has only a minor portion of the market for pacemakers in northern California. Restraining Gibbons in the limited way available under the restrictive covenant would not seriously affect the competition in the industry. The public interest only slightly favors Gibbons, and is not nearly strong enough to prevent issuance of an injunction in view of the strength of the other three prongs of the Dataphase test. While the appellants have played some role in the disbursement of medical care, the record shows that their impact is simply not as significant and essential as they would have the court believe. They are not an indispensable element whose absence will result in immediate and dangerous consequences. The pacemakers which they sell can still be sold to anyone their new employer chooses to contact, including Medtronic’s customers. The only restriction is that they cannot do the selling. And while their personal services may be desired and helpful, there is no evidence indicating that services of equal quality and quantity are unavailable. Furthermore, the restriction is effective for only one year. Under these circumstances, we cannot agree that the public interest suffers from enforcement of the restrictive covenant. The identical argument was made in Canfield v. Spear, 44 Ill.2d 49, 254 N.E.2d 433, 435 (1969), with the employee there being a physician. The court stated: Nor is the contract injurious to any legitimate interest of the public. Defendant can be as useful to the public at some other place in the State as he can in Rockford, and the health of persons elsewhere is just as important. It cannot be said that the public interest is adversely affected if a physician decides to move from one community to another, nor does it become so if the move results from some agreement made in advance. If a severe shortage exists in any particular place young doctors will tend to move there, thus alleviating the shortage. These considerations are equally applicable here. Appellants seem to believe that all of their business activities are prohibited. That is simply not true. There is nothing to indicate that needs previously served by the appellants cannot be served by others or that there is a shortage of salespersons possessing the skills and abilities of the appellants. Only the appellants’ interests are implicated by enforcement of the restrictive covenant, not the public’s. They voluntarily contracted for the obligations they now must fulfill and the district court has given full and proper effect to those obligations. IV. Appellants Benda and Conde filed jury demands with the district court in this case. The requests were denied and only Benda appeals from that decision. We find no merit in his argument and adopt the district court’s November 9,1981 decision in its entirety (Appendix B). We only add that the district court did not, contrary to Benda’s apparent impression, deny him a jury trial on his federal antitrust claim. The manner in which the district court handled these cases was reasonable and proper. For all these reasons, the judgment of the district court is Affirmed. APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MEMORANDUM OPINION AND ORDER Plaintiff, Medtronic, Inc. (“Medtronic”), brought separate diversity actions for declaratory and injunctive relief against three of its former employees, Charles F. Benda, Jr. (“Benda”), Emil Conde (“Conde”), and William C. Cain (“Cain”), to enforce certain noncompetition agreements which the three had signed while employed by Medtronic. On September 4, 1981, temporary restraining orders were entered against Benda and Conde, which orders have since expired. On September 8, 1981, the actions against all three defendants were consolidated for discovery purposes, and on September 24, 1981, they were consolidated for all purposes, including trial. Trial was held from November 9 through November 16, 1981. During the course of the trial, the court entered an order restraining the defendants from violating the non-competition agreements pending the outcome of the trial, which order has continued to be in effect to the date of this opinion, except as modified by an order of the Seventh Circuit Court of Appeals, dated January 21, 1982. This court has reviewed the transcript of the trial as well as the relevant exhibits, and hereby enters the following findings of fact and conclusions of law. I. Findings of Fact Medtronic is a Minnesota corporation with its principal office and manufacturing facilities located in Minneapolis, Minnesota. Medtronic is engaged, inter alia, in the manufacture and sale of implantable cardiac pacemakers (hereinafter “pacemakers”) and related devices and equipment. The defendants, Benda, Conde and Cain, are all former sales representatives for Medtronic. Benda became a Medtronic employee on April 11,1977. Benda is a college graduate, and had several years of sales experience prior to joining Medtronic. Conde became a Medtronic sales representative on or about August 1, 1977. Conde had previously attended college for two years and, like Benda, had several years of medical sales experience before his association with Medtronic. Cain joined Medtronic on September 1, 1977. Cain is also college educated, and he, too, had worked as a sales representative prior to joining Medtronic. None of the defendants was hired for a specific term of employment. All were employed at will. Subsequent to being hired by Medtronic, each of the defendants was assigned a specific geographic territory within the greater Chicago metropolitan area (extending into Indiana in the case of defendant Conde). All three were then given extensive videotape and classroom training in the sciences and sales. Medtronic supplemented this training with self-directed study materials, and also with additional training in the field, where the salesmen were coached in sales technique, and also attended the surgical implantations of pacemakers, as it was a common practice for Medtronic salesmen to attend such surgeries. All of the defendants were trained by Medtronic to be skilled sales professionals, not merely “order takers.” The initial training period for a Medtronic sales representative, although not susceptible of precise definition, was between one and six months. As sales representatives for Medtronic, the defendants were responsible for persuading physicians and surgeons in their respective territories to prescribe and implant Medtronic pacemakers in their patients. To effect that objective, the salesmen provided physicians with a wide range of services outside of the actual “sale” of the pacemaker. For instance, the defendants often counselled doctors regarding the selection of pacemakers for particular patients, and actually attended the surgical implantation of pacemakers, often on short notice, in order to provide physicians with continuing technical assistance. The defendants also arranged new product demonstrations for doctors and hospitals in their respective territories, and sometimes arranged to fly physicians to Minnesota to tour Medtronic’s manufacturing facilities. In addition, the defendants often entertained doctors and hospital staff members, at Medtronic’s expense. Pacemaker sales, as practiced by Medtronic, were characterized by close personal and professional relationships between the pacemaker sales representative and the prescribing physicians and surgeons. When each of the defendants joined Medtronic, he executed an employment agreement (hereinafter the “old agreement”), which contained a restriction of competition with Medtronic at the conclusion of his employment. The restriction provided: “For 360 days after my employment, I will not attempt to divert any Company business by influencing customers with whom I or my subordinates were connected [during] the last year of my employment.” Late in September, 1977, each of the defendants signed a revised employment agreement (the “revised agreement”), which contained, among other things, a revised restriction on post-termination competition. In relevant part, the revised agreement provided: “In consideration of my employment, continued employment, promotion or increase in compensation by the Company, I hereby agree as follows: 5(b). “For 360 days after termination of my employment with the Company, I will not attempt to divert any Company business by soliciting, contacting or communicating with any customers for the Company’s products with whom I, or employees under my supervision, had contact during the year preceding termination of my employment” Benda signed the revised agreement on September 23, 1977, Conde on September 29, 1977, and Cain on September 27, 1977. Each of the revised agreements was also signed by David Raich, the Chicago District Manager for Medtronic (and the defendants’ immediate superior), and Dale Olseth, Medtronic’s president and chief executive officer. In return for signing the revised agreement, each of the defendants continued to be employed by Medtronic. At the time the defendants signed, Medtronic also changed its method of compensating its salesmen, replacing a “quota” method with an “eight quarter rolling average method” or “EQRA.” That change resulted in increased compensation for each of the defendants. The change in compensation, although announced in late September, 1977, was made retroactive to August 1, 1977. Benda resigned from Medtronic on August 31, 1981, Conde resigned on September 2, 1981, and Cain resigned on September 4, 1981. All three defendants are now independent pacemaker sales representatives for Intermedies, Inc., a competitor of Medtronic. Each of the defendants accepted an identical compensation package from Intermedies, consisting of a “salary support” program of up to two years duration, followed by commission compensation equal to 15% of Intermedies’ gross sales in his assigned Intermedies territory. The salary support program consists of: Two years’ guaranteed salary of $100,000 per year; Reimbursement of all business-related expenses, plus a monthly car allowance of $600; A $5,000 bonus for the sale of the first ten Intermedic’s pacemakers in each defendant’s “territory;” Reimbursement of all legal fees incurred in litigation with Medtronic. Intermedies has assigned the defendants both temporary and permanent territories. Each defendant’s permanent territory consists largely of the hospitals which were in his former Medtronic territory, and each defendant’s temporary territory consists only of hospitals outside of his former Medtronic territory. Each defendant agreed to work in his temporary territory until 360 days had elapsed following his resignation from Medtronic, or until such time as a court ruled that he may reenter his former territory. Benda’s temporary territory consists largely of Cain’s former Medtronic territory, Cain’s temporary territory consists mainly of Conde’s former Medtronic territory, and Conde’s temporary territory consists mainly of Benda’s former Medtronic territory- Notwithstanding the fact that none of the defendants’ temporary Intermedies’ territories requires that he reenter his former Medtronic territory, since resigning from Medtronic all three of the defendants have had numerous contacts with hospitals and doctors from their former Medtronic territories. Benda’s contacts include: (1) the sale of Intermedies pacemakers to doctors whom he had formerly contacted for Medtronic; (2) attendance at surgeries performed in his former Medtronic territory at which Intermedies pacemakers were implanted; and (3) personally introducing defendant Conde to some of the individuals upon whom Conde would be calling as the temporary Intermedie salesman in Benda’s territory. Conde’s contacts in his former Medtronic territory consist primarily of visits, lunches and dinners with various doctors whom he had contacted for Medtronic. On most of those occasions, Code [sic] discussed the qualifications of defendant Cain, who was the temporary Intermedies salesman in Conde’s territory. Conde did not sell the doctors Intermedies pacemakers, however, and there was no evidence that he has attended surgeries in his former Medtronic territory since resigning. Defendant Cain’s contacts with his former Medtronic territory have been extensive. They include: (1) dropping off his new Intermedies business cards at at least nine of the hospitals in his former Medtronic territory; (2) the sale of Intermedies pacemakers to doctors whom he had formerly contacted as a Medtronic employee; (3) attendance at surgeries performed in his former Medtronic territory at which Intermedies pacemakers were implanted; and (4) arranging Intermedies product demonstrations in his former Medtronic territory. As a result of the above contacts and communications, the court finds that Medtronic has been injured, although the extent of the harm is not susceptible of quantification. During September and October, 1981, Medtronic experienced a drop in sales in its Chicago District office of nearly 100 pacemakers. Pacemakers cost an average of $3,500 apiece. The court concludes that at least a portion of Medtronic’s loss is attributable to the defendants’ actions. II. Conclusions of Law The two central issues in this ease are the enforceability of the non-competition clause contained in the revised employment agreement and, if the clause is found to be enforceable, the interpretation of certain language contained in that provision. First, the court will address the issue of enforceability. A. Enforceability of the Non-Competition Agreement Under Illinois law, a restrictive covenant in an employment contract is enforceable where the employer demonstrates the existence of: (1) a valid, binding, contract; (2) a protectible interest in the enforcement of the covenant which justifies its enforcement; and (3) reasonable limitations on the scope of the covenant. E.g., Gorman Publishing Co. v. Stillman, 516 F.Supp. 98, 104 (N.D.Ill.1981). See Cockerill v. Wilson, 51 Ill.2d 179 (1972); Canfield v. Spear, 44 Ill.2d 49, 254 N.E.2d 433 (1969); Morrison Metalweld Process Corp. v. Valent, 97 Ill.App.3d 373, 376, 52 Ill.Dec. 825, 422 N.E.2d 1034 (1st Dist. 1981). Here, the defendants have challenged Medtronic’s non-compete clause on all three grounds. 1. The existence of a valid contract All three of the defendants signed employment agreements containing restrictive covenants when they joined Medtronic in 1977 (the “old agreement”), and signed revised agreements containing similar post-termination restrictions late in September of that year. The defendants were all experienced salesmen at the time that they signed those agreements, and they were educated individuals as well. It cannot be said that they either lacked contractual capacity or were unable to comprehend the meaning of the restrictions on competition to which they agreed. The defendants have argued that the revised agreement should be found void for lack of consideration. The court cannot agree. The revised agreement was supported by two alternatively sufficient bases for consideration. First, Medtronic changed its compensation scheme to the EQRA at the time that the defendants signed the agreement, thereby increasing the salary of each. An increase in pay is certainly sufficient consideration to support a modification of an employment agreement. Although defendant Conde argues that the EQRA was changed in May of 1981, and that therefore, Medtronic’s consideration for the revised agreement has been withdrawn, he has failed to demonstrate a return to the quota system which preceded the EQRA, or that his own level of pay has returned to what it would have been under the old system. A mere revision in Medtronic’s compensation scheme, which is all that Conde has demonstrated, does not, in itself, render the revised agreement unenforceable. In addition to compensation increases, in this case continued employment of the defendants by Medtronic was sufficient consideration to render the revised agreement enforceable. See Carter v. Kaskaskia Community Action Agency, 24 Ill.App.3d 1056, 1059, 322 N.E.2d 574 (5th Dist. 1974). Where, as here, employment is at will, and the employees agreed to the restrictions when they began their employment, the court finds that their continued employment is sufficient consideration for a revision in the terms of the restriction. Id. See Reed, Roberts Associates, Inc. v. Bailenson, 537 S.W.2d 238, 240, 241 (Mo.App.1976); Farm Bureau Service Co. v. Kohls, 203 N.W.2d 209 (Iowa 1972); Wrentham Co. v. Cann, 345 Mass. 737, 189 N.E.2d 559 (1963). But see George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975); James C. Greene Co. v. Kelley, 261 N.C. 166, 134 S.E.2d 166 (1964). In this case, each of the defendants signed an agreement which explicitly stated, “In consideration of... my continued employment,... I agree as follows...” The court finds that the agreements were, as the employees agreed at the time, supported by consideration. The last of the defendants’ challenges to the validity of the revised agreement is that the agreement was an adhesion contract, and that the defendants signed the contract under the duress of either signing or losing their employment. Neither of the arguments is persuasive. True, the Medtronic employment agreements were prepared by Medtronic. That fact alone, however, provides no evidence of the gross disparities in bargaining power which typify most adhesion contracts. See United States Trotting Association v. Chicago Downs Association, 487 P.Supp. 1008 (N.D.Ill.1980). The defendants signed the old agreement at a time at which Medtronic needed additional salesmen, and the defendants were seeking employment. Based on the evidence presented, the defendants simply chose to accept Medtronic’s terms of employment. There is no evidence that any was coerced to do so. Regarding the revised agreement, there is no evidence that any of the defendants disagreed with its terms when it was presented to them in late September, 1977, or that Medtronic was, at that time, capitalizing upon any disparity in bargaining power. Indeed, there is little if any substantive difference between the non-competition clauses in the two agreements. No evidence was presented to suggest that any of the defendants sought modification of any of the terms of the revised agreement, or that they even questioned the meaning of the new non-competition clause. The defendants’ entire argument seems to be predicated upon Medtronic’s insistence that continued employment was contingent upon their signing the revised agreement, but in doing so, the defendants mistake consideration for coercion. Courts have consistently enforced revised employment agreements which were conditioned upon continued employment. See, e.g., Reed, Roberts, supra. When the terms of employment at will are revised, an employee must decide whether to accept the new terms or seek alternative employment. Continued employment under the old terms may simply not be one of the options available to the employee, and the fact that it is not one of the options available does not make the employee’s decision the product of coercion. The court concludes that the defenses of duress and adhesion fail, and that both the old agreements and the revised agreements signed by each of the defendants were valid contracts. 2. The existence of a protectible employer interest Under Illinois law, a post-termination non-competition clause is not enforceable “unless the employer can demonstrate that a ‘protectible interest’ justifies it...” Gorman Publishing Co. v. Stillman, 516 F.Supp. at 104. Two such protectible interests are generally recognized. First, if the employee “acquired confidential information through his employment and subsequently attempted to use it for his own benefit,” courts will allow the employer to protect his interest in that information. Morrison Metalweld, 97 Ill.App.3d at 376, 52 Ill.Dec. 825, 422 N.E.2d 1034. Second, courts will allow an employer to protect his interest in its customers if, by the nature of the business, the employer has “a longstanding relationship with its customers, with whom the defendant would not have come in contact” but for his association with the plaintiff. Id. See Cockerill v. Wilson, supra; Canfield v. Spear, supra; Donald McElroy, Inc. v. Delaney, 72 Ill. App.3d 285, 27 Ill.Dec. 892, 389 N.E.2d 1300 (1st Dist. 1979); Wessel Co. v. Busa, 28 Ill.App.3d 686, 692, 329 N.E.2d 414 (1st Dist. 1975). Cf., Nationwide Advertising Service, Inc. v. Kolar, 14 Ill.App.3d 522, 302 N.E.2d 734 (1st Dist. 1973) (no protectible interest in customers where relationship is merely transitory). Although this case presented a very close question as to the first type of protectible interest, whether the defendants possessed the requisite confidential information to justify enforcement of the agreement, the court finds that Medtronic’s long term relationships with its customers bring it within the meaning of the second type of protectible interest, and therefore, the court need not address the confidentiality issue. Medtronic’s close professional relationships with its hospital accounts, prescribing physicians and implanting surgeons predates the defendants’ employment with Medtronic. The defendants, none of whom sold pacemakers prior to joining Medtronic, received extensive training from the plaintiff, and were well-compensated by the plaintiff to further develop close personal and professional relationships with the doctors upon whom they called. The defendants, in developing those relationships “exceeded traditional boundaries of salesman responsibilities.” Wessel Co. v. Rusa, 28 Ill.App.3d at 692, 329 N.E.2d 414. Medtronic’s salesmen played an integral role in the entire pacemaker implantation process, from sale through post-implanatation [sic] follow-up. Medtronic salesmen, among other things, attended surgeries and provided continuing technical assistance to the doctors upon whom they called. To further cement the close customer relationships, Medtronic periodically flew physicians to Minnesota to tour its facilities, and also paid the expenses for its salesmen to wine and dine physicians and members of hospital staffs. As such, the relationships are more closely analogous to the near-permanent relationships described in Morrison Metalweld, Cockerill and Canfield, then they are to the transitory nature of many other unprotectible customer relationships. Therefore, the court finds a protectible interest to exist here which would justify enforcement of the agreement, thus satisfying the second requirement for enforcement. 3. The existence of reasonable limitations on the scope of the covenant The final requirement-for [sic] the enforcement of a non-competition agreement is that the agreement be reasonable in scope as to both time and geography. Briggs v. R. R. Donnelley & Sons, Inc., [sic] 589 F.2d 39, 41 (1st Cir. 1978) (applying Illinois law). The non-competition agreement here is reasonable as to both. First, the agreement only restricts the defendants’ conduct for 360 days following their resignations from Medtronic. Given the length of time needed to replace an experienced employee and the shortness of the restriction, the court finds the time restraint to be reasonable. See Cockerill, supra (5-year restriction upheld); Canfield, supra (3-year restriction upheld). Second, the court finds the geographic restraint contained in the agreement to be reasonable and tailored specifically to the interest which Medtronic seeks to protect. Medtronic’s agreement restricts only contacts with those customers with whom each of the individual defendants dealt, and not all of the customers of Medtronic as a whole. Furthermore, the restriction does not foreclose the defendants from selling pacemakers in the Chicago metropolitan area, so long as they do not contact customers with whom they previously dealt. The narrowness of that limit has enabled the defendants to secure territories with Intermedies which do not even require them to relocate from their present residences. The restriction at bar is reasonable as to time and geography and is not unduly burdensome to the defendants. See Gorman Publishing Co. v. Stillman, [supra]. The court concludes, after reviewing the non-competition agreements here, that they are reasonable and should be enforced. The Illinois Appellate Court in Morrison Metal-weld observed, “[w]hen a party to an employment contract agrees, in exchange for certain benefits, to refrain from competing with his or her employer, that agreement should be enforced where equitable.” 97 Ill.App.3d at 376, 52 Ill.Dec. 825, 422 N.E.2d 1034. Here, it seems only equitable that Medtronic should have the right for which it contracted, to replace the defendants in its close doctor-salesman relationships before the defendants have the opportunity to appropriate those relationships for their own private gain. B. Interpretation of the agreement Having decided that the restrictive covenant is enforceable, the court is next required to interpret the terms of the agreement. The defendants contend that the use of the word “customer” in the agreement means that they should only be restrained from contacting hospitals, and that they should be left free to contact doctors with whom they dealt as Med Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_state	07	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". BURLINGTON TRANSP. CO. v. STOLTZ. No. 4273. United States Court of Appeals Tenth Circuit. Oct. 11, 1951. H. Berman, Denver, Colo. (Joseph N. Lilly, Denver, Colo., was with him on the brief), for appellant. Clay R. Apple and L. J. West, Greeley, Colo., for appellee. Before ' HUXMAN, MURRAH and PICKETT, Circuit Judges. HUXMAN, Circuit Judge. Earl C. Stoltz instituted this action against appellant, Burlington Transportation Company, to recover damages for the wrongful death of his minor son, while a passenger on appellant’s bus. There is no conflict in the evidence. In fact, appellant defendant below introduced no evidence relating to the occurrence of the accident resulting in the death of appellee’s minor son. The jury returned a verdict for plaintiff on which judgment was entered. Eight assignments of error are urged for reversal. All but one relate to alleged errors in the trial court’s instructions. The last assignment relates to the exclusion of certain Colorado Statutes offered in evidence by appellant. Only a brief statement of facts is essential to the questions presented. On the day in question appellee’s son was a passenger on one of appellant’s East bound busses, coming from California to his home in Greeley, Colorado. The accident occurred a short distance from Salt Lake City, Utah, about six miles West of Delle, Utah. The bus on which appellee’s son was riding was travelling East on the South side of a two-lane main highway. There was some ice and fog at the time, partially obscuring visibility, so that the bus was travelling with lights on. At the same time, one of appellant’s busses was coming West on the same highway and travelling on the North side of the highway. Just before the accident, the West hound bus started to pass an automobile in its lane of traffic, going in a Westerly direction. In passing, it pulled into the South lane of traffic and met the East bound bus in a collision, nearly opposite the car it was attempting to pass. The collision caused the death of appellee’s son. It is contended that the court erred in its Instruction No. 1 and in refusing to give appellant’s tendered Instruction No. 1. The court rejected appellant’s Instruction No. 1 on the ground that its substance was included in the court’s Instruction No. 9. In Instruction No. 1 the court, in addition to other matters, instructed the jury with respect to the defense of unavoidable accident, which was a defense tendered in appellant’s answer. It instructed the jury that “The burden of proof is upon the defendant to prove, by a preponderance of the evidence, that the collision was due to .an unavoidable accident.” Appellant contends that the court should have added thereto “unless such evidence has been adduced on the plaintiff’s case.” In addition to Instruction No. 1, the trial court gave a separate instruction on unavoidable accident, in which after correctly defining unavoidable accident, it told the jury that “If you find from a preponderance of the evidence that the death of the plaintiff’s son was due to an unavoidable accident, then your verdict should be in favor of the defendant.” Since the only evidence adduced was by plaintiff, the jury would, of necessity, be required to resolve this issue under the instruction of the court from a ■consideration of that evidence. We think the two instructions considered together ■adequately guided the jury in its deliberations with respect to this defense. It is not necessary to consider a somewhat similar instruction which was before the Supreme Court in the case of Denham Theatre v. Beeler, 107 Colo. 116, 109 P.2d 643 upon which appellant relies, because the instructions there were entirely different from the instructions in this case. Appellant complains of the court’s refusal to give its tendered Instructions No. 2 and 3. Instruction No. 2 recited the Colorado Statute, 35 C.S.A. c. 50, § 3, limiting recovery for death to $5,000, and Instruction No. 3 instructed the jury that in no event could its verdict exceed the maximum amount of $5,000 fixed by the Statute. In a former appeal in this case, 178 F.2d 514, 15 A.L.R.2d 759, we held that the measure of damages was controlled by the law of Utah where the cause of action arose and not by the law of Colorado where it was tried. That decision became and, is the law of the case. We are satisfied with that decision and are not inclined to accept appellant’s invitation to reconsider the matter. It is also urged that the court erred in refusing to give appellant’s requested Instruction No. 4, in which it requested the court to instruct the jury “That many states have different laws regarding the amount of damages in a death case. The law of Colorado is that no more than $5,000 can be awarded. The law of Utah has no limit.” Since the jury was bound by the law of Utah in the consideration of t'he amount of damages, the law of Colorado became wholly immaterial. Appellant cites Northern Pacific Railroad Company v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 980, 38 L.Ed. 958, in support of such an instruction. But that case does not sustain its position. While in that case the trial court did give an instruction stating that “Many states have different laws. The law in this state until recently was that only $5,000 could be given in a case of death. It has lately been increased to $10,000,” the court, ■however, further instructed the jury that “The law of Montana limits it to such an amount as you think would be proper under all circumstances of the case, and that is the law which will govern in this case.” Appellant did not tender this instruction as a part of its requested Instruction No. 4. The appropriateness o-f the reference to the law of Minnesota (the lex fori) was not discussed or considered by the Supreme Court in the decision of that case. Since the law of Colorado with regard to the amount of allowable recovery was immaterial to a consideration of the question before the jury, reference thereto was properly eliminated from the case. Neither did the court err in refusing appellant’s requested Instruction No. 5, instructing the jury “That a driver suddenly realizing that he is confronted by an emergency, not created by his own negligence, is not to be charged with negligence for an error of judgment, if any, when practically instantaneous action is required.” We agree with the trial court that there was no evidence in the case warranting the giving of this instruction. • Appellant argues that the court erred in that part of its Instruction No. 9, in which it told the jury that it “may consider the loss, if any, of comfort, -society and companionship occasioned by the death of his son as elements of pecuniary loss.” In Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244, 249, the -Utah Supreme Court approved an instruction' in the following words: “You should also, take into consideration the financial loss to the plaintiff of the boy’s comfort, society and -companionship.” The trial court used the words “pecuniary loss.” The instructions in the Van Cleave case used the phrase “financial loss.” The distinction w-hidi appellant seeks to draw between the two instructions is without merit. The loss of the comfort, society and -companionship was an element of damages to be considered, together with any other elements of damages established in the trial. While the portion of the quoted instruction in the Van Cleave case does not -contain the word “element,” a reading of the entire instruction makes it clear that the jury was instructed that such loss was but one o-f the elements or items of loss for which,- if established, recovery might be had. Objection is also made to that part of Instruction No. 9 in which the court instructed the jury, that it might also “consider the present purchasing power of the dollar and award such damages, if any, as under all of the circumstances of the case may be just. * * * ” There are numerous decisions, including decisions from Utah, holding that the change in the purchasing power of the dollar is proper to consider in arriving at a just award. The Utah Supreme -Court in a number of cases has considered the present purchasing power o-f the dollar in passing upon the amount of damages awarded. In McAfee v. Ogden Union Ry. & Depot Co., 62 Utah 115, 218 P. 98, 104, the Supreme Court in passing upon the adequacy of a verdict said: “The present cost of living must be considered, and the diminished purchasing power of the dollar must be taken into consideration when estimating damages.” And in Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244, 250, the court again said: “The argument of counsel loses its apparent potency when reference is made to the dates of the cited decisions, 1901, 1903, and 1914. The purchasing power of the dollar has greatly decreased since the dates o-f those decisions. This fact is so well known that we can take judicial notice of it.” If the present value of the dollar is an element to -consider in determining whether a verdict is adequate or excessive, it is proper in order to guide the jury in its deliberations that a proper instruction relating thereto be given. Appellant offered in evidence the Colorado Statute relating to the maximum amount of recovery in death cases. The trial court excluded this evidence. The offer was -made, as stated, by appellant in support of its continued contention that the Colorado Statute controlled the maximum amount of recovery notwithstanding that the cause of action arose in Utah. What has been said heretofore with regard to this question disposes of this contention. We find no reversible error in the record and the judgment is accordingly Affirmed. . The cause of action there arose in Montana and was tried in Minnesota. . 12 A.L.R.2d, beginning on page 611; Dabareiner v. Weisflog, 253 Wis. 23, 33 N.W.2d 220, 12 A.L.R.2d 605; New Amsterdam Casualty Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128. . See also Coke v. Timby, 57 Utah 53, 192 P. 624, 625. 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_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Kenneth M. BROWN, Appellant, Riggie A. Lott and All Other Inmates That Have Been Subject to the Conditions in the Adjustment Unit v. UNITED STATES of America, et al. No. 81-2083. United States Court of Appeals, District of Columbia Circuit. Argued En Banc Nov. 7, 1983. Decided Sept. 4, 1984. As Amended Oct. 2, 1984. Bork, Circuit Judge, dissented and filed opinion, in which Tamm, Wilkey, and Starr, Circuit Judges, joined. Anne Shere Wallwork, Washington, D.C. (appointed by this court), for appellant, Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Charles L. Reisehel, Deputy Corp. Counsel, Washington, D.C., was on the brief, for appellee Dist. of Columbia. Leo N. Gorman, Asst. C°rp. Counsel, Washington, D.C., entered an appearance for appellee Dist. of Colum^ja Before ROBINSON, Chief Judge, and WRIGHT, TAMM, WILKEY, WATT), MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, and STARR, Circuit Judges, Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT, in which Chief Judge SPOTTSWOOD W. ROBINSON III, and Circuit Judges WALD, MIKVA, HARRY T. EDWARDS, GINSBURG, and SCALIA join, Dissenting opinion filed by Circuit Judge BORK, in which Circuit Judges TAMM, WILKEY and STARR join. J- SKELLY WRIGHT, Circuit Judge: On October 19, 1979, Yusaf Na’im Salahuddin (then known as Kenneth M. Brown), an inmate of the District of Columbia’s reformatory at Lorton, Virginia, filed suit in the United States District Court for the District of Columbia. The suit alleged that conditions in the reformatory’s “Adjust-, tt >,„, J. ment Unit, where the plaintiff had previ-,, ’.,,,, ously been incarcerated, had unconstitu-.,., „,,., Anally deprived inmates. of adequate food, ^^ns, cell space, and educational, religious, legal, and rehabilitative services, and had failed to protect. them from physical assault by guards and other inmates. The suit originally sought declaratory and injunctive relief as well as damages, and it named as defendants a number of District of Columbia and federal officials and the District of Columbia itself. Here, we are concerned only with the claim seeking damages from the District of Columbia (the District). The District Court, on September 2, 1981, granted a summary judgment motion filed by the District. The part of the District Court’s order that concerns us is its holding that the notice of claims provision in the District of Columbia Code, 12 D.C.Code § 309 (1981), applied to plaintiff’s action for unliquidated damages against the District. In relevant part, 12 D.C.Code § 309 provides: An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Commissioner [Mayor] of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. * * * Because plaintiff had not filed any notice that would comply with 12 D.C.Code § 309, the District Court granted summary judgment as to the damage action. Plaintiff appealed and argued that Section 309 did not apply to federal causes of action such as his constitutional tort action. While the appeal was pending, a panel of this court decided McClam v. Barry, 697 F.2d 366 (D.C.Cir.1983), which held that Section 309’s six-month notice of claims requirement does apply to federal damage actions against the District. In light of McClam, a panel of this court affirmed the District Court’s grant of summary judgment with respect to the damage claims against the District, 704 F.2d 1293. On May 19, 1983, this court granted reconsideration en banc and vacated the judgment of the panel. We now hold that McClam v. Barry was in error in holding that the six-month notice of claims provision of Section 309 applies to causes of action that, like this constitutional tort claim, are creations of federal law. I. The Decision in McClam v. Barry To resolve the issue whether 12 D.C. Code § 309 should apply to federal causes of action, the McClam court correctly focused its inquiry on two possible approaches. First, it asked whether Congress, when it enacted Section 309, meant for that section to apply to federal causes of action. 697 F.2d at 369. But it also realized that even if Congress had no such explicit intent the section might still be applicable to federal actions because federal law does at times borrow state legal provisions to complement federal law. Thus, as a second inquiry McClam asked whether application of Section 309 was “supported by the rationale of the rule * * requiring application of local statutes of limitations to claims based on federal laws that specify no limitations period.” Id. at 370. We agree that these inquiries are the proper ones. That we make two inquiries reflects the existence of two available rationales that could justify applying Section 309 to federal causes of action: First, that Congress may have intended Section 309 itself to alter the normal rules applicable to federal causes of action, and second, that those normal rules themselves may take account of Section 309 just as they take account of certain other provisions of local law. The first inquiry thus rests entirely on a rationale of actual congressional intent: Congress, the author of national legislation, may at times intend that its District of Columbia legislation modify national policies with respect to the District of Columbia. The second inquiry begins with an alternative view of congressional intent: Congress, which is constitutionally responsible for providing a comprehensive body of local law for the governance of the District of Columbia, may see itself as passing local legislation akin to that which any other local legislature might pass. The rationale for applying the provision then rests on established judicial practices concerning when state or local provisions of law should be used as rules of federal law. This approach is in part a judicial positing of congressional intent and in part an examination of the provision’s role in state and local law. For example, the rule that federal law borrows from local law when there is no federal statute of limitations in part “rests on deference to the local balancing of interests embodied in statutes of limitations — a balancing of the interest in allowing the prosecution of valid claims against the interest in preventing the prosecution of claims that, because of delay, cannot be fairly litigated.” Id. at 370 (citing Board of Regents v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 1796, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975)). The McClam court apparently concluded that either of the two inquiries would justify the applicability of Section 309 to federal actions. In answer to the first, it concluded that “the D.C.Code provision was an intentional limitation [by Congress] on the right to bring even federal causes of action for damages against the District of Columbia.” 697 F.2d at 369. In answer to the second, McClam concluded that “[t]he same balancing of interests lies behind the D.C.Code notice provision” as lies behind traditional state statutes of limitations, id. at 370, and that Section 309 should thus be borrowed so that federal law as applied in the District of Columbia would reflect that local balance. While we agree that McClam made the right inquiries, we disagree with each of its answers. II. Congressional Intent and 12 D.C.Code § 309 12 D.C.Code § 309 was enacted by Congress in 1933, at least partially in response to this court’s en banc decision and recommendation in District of Columbia v. Leys, 63 F.2d 646, 648 (D.C.Cir.1932) (on rehearing), cert. denied, 289 U.S. 756, 53 S.Ct. 787, 77 L.Ed. 1500 (1933). See Pub.L. No. 72-385, 47 Stat. 1370 (1933). The language and purposes of the statute were broad. As McClam points out, the language contains no limitations regarding the types of actions covered. 697 F.2d at 369. Similarly, the Act’s stated purposes — to provide the District an opportunity to investigate claims when all evidence is still fresh, to allow the District to seek out early settlement of meritorious claims, and generally to protect the District’s revenues from unreasonable suits — would certainly be fulfilled all the more by giving the Act as broad a reading as its language would allow. See id. See generally H.R.Rep. No. 2010, 72d Cong., 2d Sess. (1933) (describing purposes of Act). We do not, however, find these factors conclusive; other factors argue for a narrower view. Nothing in the history of the Act indicates that Congress ever considered the question whether the Act should apply to federal actions. The Leys opinion, which urged the Act’s passage, concerned a “garden variety” tort suit against the city; the plaintiff had slipped on a defective sidewalk and brought suit long after the event. Similarly, the report accompanying the bill described the problem to be rectified as that of “[n]umerous instances * * * in which notice of injury as a result of alleged defective sidewalks, or other conditions, were brought to the [city’s] attention * * * by a filing of a suit for damages more than two years after the alleged injury occurred.” H.R.Rep. No. 2010, supra, at 1. The conclusion that Congress was motivated by the municipality’s potential liability for everyday torts is strengthened by the fact that a provision was added which allowed written Metropolitan Police reports to fulfill the notice requirement of the Act. Such reports would have been commonly associated with street accidents and similar events. None of this discussion is meant to imply that the scope of Section 309 should be limited to the sorts of “garden variety” negligence actions described above. We do not question the subsequent cases that have given it a far broader application. See, e.g., Breen v. District of Columbia, 400 A.2d 1058 (D.C.C.A.1979) (applying Section 309 to intentional torts). The point is, however, that there is no evidence that Congress envisioned itself to be acting as other than a local legislature protecting a municipality from the threat of excessive common law tort liability. Not only was the problem that Congress discussed one of routine municipal administration — with no reference to the “unique” or “national” character of the District — but in its legislative history the Act is explicitly analogized to similar legislation passed in the states to govern other municipalities. The analogy to municipal notice provisions existing throughout the nation was raised by this court when it first suggested congressional passage of the already introduced notice provision. The Leys opinion argued that “[provisions of this character appear to be included in [the] bill recently introduced into [Congress], and are to be found in city charters in Virginia and elsewhere.” 63 F.2d at 648. Congress similarly equated the provision with laws commonly passed by state governments. The report accompanying the bill pointed out that “[similar statutes are in effect in 32 States” and sought to justify the length of time allowed for giving notice by comparing it to the provisions in effect in “other jurisdictions.” H.R.Rep. No. 2010, supra, at 2. All of this persuades us that Congress simply saw itself to be acting as a local legislature when it passed Section 309. Under the Constitution, Congress has authority to act as the local legislature for the District of Columbia, and thus Congress frequently enacts legislation applicable only to the District and tailored to meet local needs. Absent evidence of contrary congressional intent, such enactments should be treated as local law, interacting with federal law as would the laws of the several states. See, e.g., Sullivan v. Murphy, 478 F.2d 938, 971-973 (D.C.Cir.), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973). Therefore, we do not interpret the Congress that passed this apparently local legislation as having intended that it should burden federal causes of action any more than would an analogous state ordinance. III. Federal “Borrowing” Doctrine A. An Overview of the Doctrine The central claim of the District is that even if 12 D.C.Code § 309 is best understood as purely local law, courts should “borrow” it as a rule of federal law when the District is sued. The doctrine of federal borrowing of local law is well established. To effectuate the goals of federal law, courts, when faced with deficiencies in federal schemes, look to other sources of law to “borrow” appropriate provisions. As the Supreme Court has said: “There will often be no specific federal legislation governing a particular transaction * * . But silence * * in federal legislation is no reason for limiting the reach of federal law * * . [T]he inevitable incompleteness [of federal enactments] means that interstitial federal lawmaking is a basic responsibility of the federal courts.” United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973). One of the principal sources of law that courts turn to to fill the deficiencies in federal schemes is state law. For example, where a federal action contains no statute of limitations courts ordinarily look to state law as a possible source of federal law. See generally DelCostello v. Int’l Bhd of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Where it would be consistent with the federal policies underlying the action, courts borrow the most appropriate state limitations provisions. See Burnett v. Grattan, — U.S. —, —, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984); Johnson v. Railway Express Agency, supra, 421 U.S. at 462, 464, 95 S.Ct. at 1721, 1722. Indeed, courts have borrowed not only the limitations provisions themselves, but also state tolling policies, which “are * * integral part[s] of a complete limitations policy” and which thus give the limitations provisions their meaning under state law. Tomanio, supra, 446 U.S. at 488, 100 S.Ct. at 1797. State provisions other than statutes of limitations and tolling policies, but analogous to them, have also been borrowed to fill gaps in federal law, see, e.g., Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (borrowing state survivorship of actions rule), though the practice has been less common and the courts have been somewhat less consistent. See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 829 (2d ed. 1973) (apart from statutes of limitations and their incidents, “[t]he authorities are extremely sparse” concerning the extent to which state “ ‘procedural’ and ‘quasi-procedural’ rules[,]” particularly those “which may affect outcome[,]” should be borrowed); id. at 199-200 (Supp.1981) (discussing the inconsistent results in cases concerning the extent of borrowing state procedural provisions other than “statutes of limitations and their incidents”); see also Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv.L.Rev. 66, 91-94 (1955) (reasons for applying state procedural law are usually weak when dealing with rules other than statutes of limitations). These borrowing practices are the result of at least two considerations. First, as mentioned above, they reflect the fact that federal law is frequently “deficient” in that it does not supply the complete legal framework necessary to the fair adjudication of federal causes of action. Although federal law may establish rights, and rights of action for the vindication of those rights, federal law does not always include all the “ ‘procedural’ or ‘quasi-procedural’ ” elements that are generally considered necessary to the fair litigation of its causes of action. Where these are absent, it certainly cannot be assumed that the interests normally embodied in those elements were intended to play no part in the federal scheme. See DelCostello, supra, 462 U.S. at —, 103 S.Ct. at 2287 (where there is no statute of limitations, “we do not ordinarily assume that Congress intended that there be no limit on actions at all”); Tomanio, supra, 446 U.S. at 488, 100 S.Ct. at 1797 (the absence of a statute of limitations cannot be understood as placing policies of repose in disfavor); see also Hill, supra, 69 Harv.L.Rev. at 91-92. Thus the courts are faced with the necessity of formulating some rule to fill the deficiency in the federal scheme and thereby to effectuate federal policy. In this context, the borrowing doctrine is the alternative to judicial formulation of a uniform federal rule. The borrowing doctrine also rests on deference to the balances that local law has struck with respect to the interests normally embodied in the elements necessary to, but absent from, the federal scheme. See Johnson v. Railway Express Agency, supra, 421 U.S. at 463-464, 95 S.Ct. at 1721-1722 (“[A]ny statute of limitations * * * reflects a value judgment concerning the point at which the interests in * * * protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones. * * * In borrowing a state period of limitation * * , a federal court is relying on the State’s wisdom * .”); McClam v. Barry, supra, 697 F.2d at 370. With respect to certain statutes, Congress has explicitly codified-this borrowing doctrine. See 42 U.S.C. § 1988 (1982) (courts should look to state law when federal law is not “suitable to carry [the policies of the Reconstruction Era civil rights statutes] into effect” or when those statutes “are deficient in the provisions necessary to furnish suitable remedies,” so long as rules of state law are not inconsistent with policies embodied in federal law); Burnett v. Grattan, supra, — U.S. at —, 104 S.Ct. at 2928; Johnson v. Railway Express Agency, supra, 421 U.S. at 464, 95 S.Ct. at 1722 (linking 42 U.S.C. § 1988 to general federal borrowing practices); see also Tomanio, supra. But see Eisenberg, State Law in Federal Civil Rights Cases: The Proper Scope of Section 1988, 128 U.Pa.L.Rev. 499 (1980) (giving very different interpretation of Section 1988). Yet neither when codified nor when used as a “fallback rule of thumb” of federal common law, DelCostello, supra, 462 U.S. at —n. 12, 103 S.Ct. at 2287 n. 12, is the doctrine an absolute one to be mechanically applied. State law rules are borrowed out of the need to effectuate federal policies in the face of incomplete federal law, and they are not borrowed if they would incorporate into federal law balances of interests that are inconsistent with the policies underlying the federal action. See 42 U.S.C. § 1988; Tomanio, supra, 446 U.S. at 487, 100 S.Ct. at 1796. As the Supreme Court has recently stated, “Federal courts must be ever vigilant to insure that application of state law poses ‘no significant threat to any identifiable policy or interest.’ ” Burks v. Lasker, 441 U.S. 471, 479, 99 S.Ct. 1831, 1838, 60 L.Ed.2d 404 (1979) (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). As this overview of borrowing doctrine shows, the issue presented by the doctrine is neither how to incorporate into federal law as much state law as a federal action will tolerate, nor how best to further state policies and goals in the litigation of a federal action. The issue is how to best effectuate the federal policies embodied in a federal action when the action does not itself supply the complete legal framework necessary to the effectuation of those policies. Because the practice of borrowing presupposes a need to fill a deficiency in the federal scheme, a court must first look to see if there is indeed such a deficiency. See Cohen v. Board of Education, 536 F.Supp. 486, 493-495 (S.D.N.Y.1982). B. The Issue of Deficiency This case can be resolved on this point. We cannot view the federal scheme for adjudicating constitutional torts as deficient for lack of a notice of claims provision. Nor can we view the District of Columbia’s notice of claims provision as simply embodying certain interests which are not explicitly provided for in the federal scheme, but which nonetheless should be treated as part of that scheme. In short, there is no deficiency in the federal scheme that would lead us to look to 12 D.C.Code § 309 as a possible source of federal law for effectuating federal policies. “State law is to be resorted to in resolving an issue if, and only if, federal law is deficient, and if, and only if, state law ‘is not inconsistent with the constitution and the laws of the United States.’ ” Jaworski v. Schmidt, 684 F.2d 498, 500 (7th Cir.1982) (iquoting 42 U.S.C. § 1988), cert. denied, 460 U.S. 1015, 103 S.Ct. 1258, 75 L.Ed.2d 485 (1983). Most of the cases involving the limiting of federal causes of action by borrowing state procedural rules have involved the question of whether to borrow state statutes of limitations, tolling policies, or other rules of response that clearly establish the point at which a cause of action ends. See, e.g., Tomanio, supra (tolling policies); Robertson, supra (survival of action rule); Johnson, supra (statutes of limitations). The courts have emphasized the frequent absence of statutes of limitations from federal enactments, the inherently legislative balancing of interests that goes into the determination of a particular period of limitation (making the judiciary particularly unsuited to make such a determination), and the indispensability of such statutes to our ideals of justice. This last point has been well understood from the beginnings of our federal system. For example, in 1805 Chief Justice John Marshall recognized the indispensability of statutes of limitations when he borrowed a federal criminal statute’s limitations period and applied it to a federal civil action for debt brought under a statute containing no limitations provision. [I]t deserves some consideration, that if [the law] does not limit actions of debt for penalties, those actions might, in many cases, be brought at any distance of time. This would be utterly repugnant to the genius of our laws. In a country where not even treason can be prosecuted after a lapse of three years, it could scarcely be supposed that an individual would remain for ever liable to a pecuniary forfeiture. Adams v. Woods, 6 U.S. (2 Cranch) 336, 341, 2 L.Ed. 297 (1805). The point was more recently emphasized by Justice Rehnquist when he argued for borrowing state statutes of limitations and tolling policies. On many prior occasions, we have emphasized the importance of the policies underlying state statutes of limitations. [They] are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system. Making out the substantive elements of a claim for relief involves a process of pleading, discovery, and trial. The process of discovery and trial which results in the finding of ultimate facts for or against the plaintiff by the judge or jury is obviously more reliable if the witness or testimony in question is relatively fresh. Thus in the judgment of most legislatures and courts, there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the fact-finding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is meritorious. * * Tomanio, supra, 446 U.S. at 487, 100 S.Ct. at 1796. By logic and tradition, the absence of a statute of limitations is an egregious gap in a cause of action. Whatever the source of a cause of action, some clear end to one’s liberty to commence suit is necessary. Most decisions concerning the borrowing of state law that would burden federal actions have arisen from this need to borrow provisions, such as statutes of limitations, tolling policies, and survival rules, that serve the exclusive purpose of defining that point where the right to maintain a cause of action ends. The McClam opinion concluded that “[t]he same balancing of interests lies behind the D.C.Code notice provision” as lies behind statutes of limitations — “a balancing of the interest in allowing the prosecution of valid claims against the interest in preventing the prosecution of claims that, because of delay, cannot be fairly litigated.” 697 F.2d at 370. Similarly, the District argues that there are no significant differences between a traditional statute of limitations and the D.C.Code’s notice provision. Although it is true that Congress was clearly concerned with ensuring the freshness of evidence when it passed 12 D.C.Code § 309, that does not resolve the issue. At a minimum, we must note that a notice provision has a very different relationship to a cause of action than that of a statute of limitations, tolling provision, or survival rule. No one disputes that if 12 D.C.Code § 309 were applied to a federal cause of action, it would be wholly independent of relevant limitations, tolling, and survival provisions, which would all remain applicable. While these latter provisions all operate to define the point of repose, after which expectations become settled, the notice of claims provision does something different. Of course, if it is not complied with, and there are no grounds for waiver, it bars an action, and thus it acts to create settled expectations; but this is simply a penalty for noncompliance. The provision’s function is to compel notice so that the municipal defendant may investigate early, prepare a stronger case, and perhaps reach an early settlement. The need to apply traditional provisions of repose (statutes of limitations, tolling provisions, and survival rules) remains unchanged, since the notice provision has a purpose that is quite distinct. It is important to our inquiry that a notice of claims provision supplements rather than replaces a traditional statute of limitations and operates in a quite different manner than does such a statute of limitations. Before examining the exact policies served by the provision, we must emphasize that its borrowing does not have the same support in tradition that the borrowing of a statute of limitations would have. This point does not simply rest on a belief in an inherent value to tradition; it rests instead on the fact that borrowing may be explained as a judicial positing of congressional intent. Because statutes of limitations are such universally familiar procedural aspects of litigation, and because they are so generally understood as essential to a fair scheme of litigation, the judiciary is safe in assuming that Congress intended (or at least would have intended) to limit all congressionally created causes of action by statutes of limitations. In other words, the judiciary can safely look at the absence of a limitations provision as a deficiency. The judiciary is on less secure ground, however, when it limits statutory or common law causes of action with procedural rules embodying interests that are not as universally understood to be as essential to fair litigation as are the repose interests embodied in traditional statutes of limitations. The absence of such rules in the cause of action cannot as easily be termed a deficiency. Indeed, the ground is less secure even when the rules embody interests similar to those embodied in traditional statutes of limitations but implement those interests in a less universally accepted manner. While the borrowing of state statutes of limitations is supported by both the need for some limitations provision and the tradition of borrowing from state law to supply it, in most other instances the application of local procedural rules that would significantly inhibit the ability to bring federal actions will be neither as reasonable nor as necessary. Accord Hill, supra, 69 Harv.L.Rev. at 91-94. C. The Role of 12 D. C. Code § 309 in Local Law With these considerations in mind, we turn to the District’s contention that 12 D.C.Code § 309 should, in spite of its differences, be analogized to a local statute of limitations and thus be adopted as a federal rule of law. To evaluate the argument, we must turn to the role that the provision plays in the local legal scheme — both its method of operation and the interests it serves. In addition to examining the provision’s legislative history, which we have done above, we should also examine the District of Columbia courts’ understanding of the provision. See 11 D.C.Code § 102 (1981) (District of Columbia Court of Appeals is “highest court of the District of Columbia”); Thompson v. United States, 548 F.2d 1031, 1035 (D.C.Cir.1976) (D.C. Court of Appeals rather than this court is final expositor of local law). In spite of the District’s insistence that the provision is closely akin to a statute of limitations, quite a different image emerges from the opinions of the District of Columbia Court of Appeals. That court has refused to view the provision as similar to a statute of limitations. See Gwinn v. District of Columbia, 434 A.2d 1376 (D.C. C.A.1981). 1. 12 D.C.Code § 309 as a condition precedent to the accrual of rights against the municipality. In Gwinn, the District of Columbia Court of Appeals decided that Section 309’s notice provision was not subject to those tolling policies that would apply to a statute of limitations. The court’s reasoning is particularly significant. The court argued that compliance with the provision was a condition precedent to the very existence of any “ ‘right of action’ or ‘entitlement to maintain an action’ ” for tort damages against the municipality. Id. at 1376. This distinguished the provision from a statute of limitations and made the statute of limitations’ tolling principles inapposite because they “presuppose[ ] that a ‘right of action’ exists and that the claimant is ‘entitled to maintain’ that action.” Id. Unless notice is given, according to Gwinn, no right of action ever accrues. In effect, under Gwinn, compliance with the provision is considered an element in any damage cause of action against the municipality. The way Gwinn characterized the operation of the notice provision makes it more difficult to view it as filling a deficiency in federal law. State law is not usually thought to add elements to federal rights of action. A court may safely posit that federal lawmakers, when setting out the elements of a cause of action, do not usually intend that there should forever remain a remedy available once those elements are established. See Tomanio, supra, 446 U.S. at 488, 100 S.Ct. at 1797. It is much more difficult to assume that those lawmakers, when they set out the elements of a federal cause of action, would normally intend for additional and unstated elements to be also considered necessary, and for state law to be consulted to supply those missing (yet necessary) elements of the federal action. In particular, nothing in federal borrowing doctrine leads us to believe that state law can precondition the accrual of federal rights of action. Cf. Campbell v. Haverhill, 155 U.S. 610, 618, 15 S.Ct. 217, 220, 39 L.Ed. 280 (1895) (arguing that a federally created right of action can be limited by a state statute of limitations because “statutes of limitations affect the remedy only, and do not impair the right”); Bomar v. Keyes, 162 F.2d 136, 140-141 (2d Cir.1947) (Hand, J.) (statutes of limitations are normally treated as going to the remedy and not as a condition to the federal right of action), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947); see also Cohen v. Board of Education, supra, 536 F.Supp. at 493-495. 2. 12 D. C. Code § 309 as a condition on the District’s waiver of municipal tort immunity. When we examine the policy reasons given by the District of Columbia Court of Appeals to support its construction and formal characterization of Section 309, we find that those reasons also undermine the argument that it would fill a deficiency in federal law just like a traditional statute of limitations. The District of Columbia Court of Appeals has consistently understood the notice requirement of Section 309 to be a condition placed on the partial waiver of the District’s sovereign immunity. See Gwinn, supra, 434 A.2d at 1378 & n. 3; Kelton v. District of Columbia, 413 A.2d 919, 920 (D.C.C.A.1980); Wilson v. District of Columbia, 338 A.2d 437, 438 & n. 2 (D.C.C.A.1975). As a matter of local common law the District has waived most of its traditional municipal tort immunity, although it still retains some. See generally Chandler v. District of Columbia, 404 A.2d 964, 965 & n. 2 (D.C.C.A.1979) (discussing continued validity of sovereign immunity in District of Columbia law); Spencer v. General Hospital, 425 F.2d 479 (D.C.Cir.1969) (en banc) (discussing history of immunity, abandoning “governmental-proprietary” test for defining immunity, and adopting “discretionary function” test for defining immunity); Elgin v. District of Columbia, 337 F.2 Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_respond1_8_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant. Yasuko N. SAKAMOTO, Administratrix of the Estate of Henry H. Sakamoto, for the Benefit of Yasuko N. Sakamoto, Next Friend and Mother of Taro Sakamoto, a Minor, and Hanako Sakamoto, a Minor, Plaintiffs-Appellees, v. N.A.B. TRUCKING CO., INC., and John A. Walkup, Defendants-Appellants. No. 82-5452. United States Court of Appeals, Sixth Circuit. Argued June 27, 1983. Decided Sept. 27, 1983. Rehearing Denied Nov. 2, 1983. Samuel R. Anderson (argued), Luther, Anderson, Cleary & Ruth, Kenneth R. Starr, Chattanooga, Tenn., for defendants-appellants. Flossie Weill, Harry Weill (argued), Weill, Ellis, Weems & Copeland, Chattanooga, Tenn., for plaintiffs-appellees. Before EDWARDS, Chief Judge, ENGEL, Circuit Judge, and BERTELSMAN, District Judge. Hon. William O. Bertelsman, Judge, United States District Court for the Eastern District of Kentucky, sitting by designation. BERTELSMAN, District Judge. This is a diversity wrongful death action arising out of an automobile-truck accident on Interstate Highway 75 in the State of Tennessee. The following facts were stipulated: On September 28, 1978, defendant John A. Walkup, an employee of defendant N.A.B. Trucking Co., Inc. (N.A.B.), was driving a loaded tractor-trailer from Columbus, Ohio, to Jacksonville, Florida. Near Knoxville, Tennessee, Walkup called an N.A.B. dispatcher to report that his tractor was malfunctioning. The dispatcher instructed Walkup to drive the rig to Warner Robins, Georgia, if possible. Walkup tried to comply with this request, but in the early evening of September 28, the tractor completely broke down on 1-75, some 85 miles south of Knoxville. Walkup reported his predicament to the N.A.B. dispatcher. He was told to get a motel room and wait for a replacement tractor. Walkup declined to take a motel room and instead informed the dispatcher that he would wait for the new tractor in a nearby motel lobby. An N.A.B. wrecker operator arrived with the replacement tractor on the early morning of September 29. After swapping the tractors, the two N.A.B. employees decided to have breakfast together. To accomplish this, Walkup did something very foolish; indeed, it turned out to be fatal. Apparently, the two men had decided to go to a restaurant at an exit just north of the breakdown location. Instead of going south to the next exit on 1-75 and returning north, Walkup tried to turn his rig around on the highway so that he could proceed north on the southbound lanes of 1-75 and exit at a nearby entrance ramp. Unfortunately, Walkup’s tractor-trailer got stuck midway through the turn with the result that the tractor-trailer blocked both southbound lanes of 1-75 and the left berm. To make matters worse, Walkup was unable to set flares to warn approaching traffic because the flare compartment in the new tractor’s cab was jammed shut. Shortly thereafter, the plaintiffs decedent, Henry H. Sakamoto, slammed into the disabled tractor-trailer in the fatal accident that was the basis for this lawsuit. In addition to the preceding facts, it is important to note that there was also evidence to the effect that Walkup had been without sleep for more than 40 hours at the time of the accident and was a habitual user of amphetamines, that N.A.B. knew or should have known of these facts, and that insufficient warning lights were operating on the truck at the time of the accident. The trial of this case was bifurcated, liability being tried first and the damages issues being tried immediately thereafter to the same jury. The defendants conceded during the first phase of the trial that they were guilty of ordinary negligence. The issues tried were whether there was any gross negligence, whether punitive damages should be assessed against one or both defendants and, if so, in what amount, and how much compensatory damages should be awarded. After the liability phase of the case, the jury found that both Walkup and N.A.B. had been guilty of gross negligence, and that both defendants were liable to the plaintiffs. In the damages phase, the jury awarded the plaintiffs $300,000 in compensatory damages and $1 million in punitive damages. The defendants were found jointly and severally liable for the compensatory damages, but N.A.B. was assessed $900,000 of the punitive damages while Walkup was assessed only $100,000. Following remittitur, a final judgment was entered in the amount of $300,000 compensatory damages jointly against both defendants, $300,000 in punitive damages against N.A.B., and $100,000 in punitive damages against Walkup. On appeal, N.A.B. argues that the judgment below should be reversed for four reasons: (1) because there was no evidence of gross negligence on N.A.B.’s part, an award of punitive damages against N.A.B. was unwarranted; (2) it was error for the trial court to permit the jury to render separate awards of punitive damages against the defendants; (3) the punitive damages award was excessive; and (4) the trial court erred to the prejudice of N.A.B. when it added another interrogatory to the special verdict form after the closing arguments. Having thoroughly reviewed the record and the transcript herein, the court is of the opinion that there was, under Tennessee law, sufficient evidence of gross negligence on the part of Walkup and N.A.B. to justify the submission of the punitive damages issues to the jury. Also, the court cannot say that the amount of punitive damages awarded was excessive. These matters were vigorously argued to the trial judge both during and after trial, and this court is constrained to respect his rulings on these issues of state law. A much more difficult question is presented, however, by the procedural history of this case, which requires the court to apply F.R.Civ.P. 49(a), 49(b) and 51 in a somewhat unusual context. To clarify the issues presented, it is necessary to review the developments in the case as the trial proceeded. Prior to closing arguments, the trial court showed counsel a verdict form that contained three special interrogatories. None of the interrogatories dealt with the independent gross negligence of N.A.B. Both counsel stated that the verdict form was acceptable. The plaintiffs’ argument was divided. In the initial portion of his closing argument, plaintiffs’ attorney forcefully argued the independent negligence of N.A.B. No objection was made by counsel for the defendant to this argument. During his closing argument, defendants’ attorney did not address the issue of the separate negligence of the trucking company but argued that the driver was not guilty of gross negligence. In the final segment of his closing argument, plaintiffs’ attorney only briefly referred to the independent negligence of the trucking company and spent most of his time on the issue of the alleged contributory negligence of plaintiffs’ decedent. At the conclusion of the closing arguments, the trial judge, following his customary practice, gave an extensive oral instruction, during which he summarized the contentions of the parties. After relating this somewhat lengthy prologue, then, we come to the crux of this appeal. During the course of his oral instructions, without having previously advised counsel of his intentions, the trial judge stated as follows: “Now, in this case, turning more directly .to the issues that will be for your decision, I read those issues to you before the argument of counsel. “Since having read them to you, I have decided that it would be appropriate to add one additional issue in the case for your consideration, and therefore, I think I will just reread the verdict form to you at the present time. And I will point out to you the additional issue that I have added since the inception of the argument of the case. (Tr. 507). “Then I have added, since reading this verdict form to you, a second issue that relates to the defendant N.A.B. Trucking Company, and it reads as follows: ‘Apart from the acts or omissions on the part of its driver, John A. Walkup, we, the jury, find that the defendant, NA.B. Trucking Company, Incorporated, blank, either was or was not guilty of gross negligence that proximately caused or proximately contributed to cause the accident that occurred upon September 29, 1978.’ “Now, that issue is based upon the plaintiff’s contention that N.A.B. Trucking Company was guilty of gross negligence not only by reason of the gross negligence as it contends on the part of the driver, Walkup, but also that even apart from the acts of omissions of the driver, that N.A.B. was guilty of gross negligence. And that’s the basis of that issue.” (Tr. 508). (Emphasis added). Defendants’ counsel seasonably objected to the addition of this interrogatory on the ground that “for the very first time, this verdict form then presents an issue in the lawsuit of the independent gross negligence of” the trucking company. (Tr. 530). The liability phase of the case was then presented to the jury, which found, so far as pertinent here, that the truck driver had been guilty of gross negligence and, in answer to the added interrogatory, that the trucking company was guilty of independent gross negligence. The general verdict was in favor of the plaintiffs against both the driver and the trucking company. The damages phase of the case was then tried. In the course of his instructions at the conclusion of that phase of the case, the trial court reminded the jury that it had “heretofore found in this lawsuit that the defendants were guilty of proximate gross negligence with reference to the accident that resulted in Mr. Sakamoto’s death.” (Tr. 826). It then submitted separate interrogatories on the amounts of punitive damages to be assessed against the driver and the trucking company. Following the remittitur, a final judgment was ultimately entered in the amount of $300,000 in compensatory damages against the trucking company and the driver jointly, and $300,000 in punitive damages against the trucking company and $100,000 in punitive damages against the driver. By reason of these events, the appellant trucking company emphatically urges upon this court that a violation of F.R.Civ.P. 51 has occurred by which it has been substantially prejudiced, because it was unfairly surprised by the giving of the additional interrogatory after closing argument. A review of the text of Rule 51 reveals that its application to the situation herein described is not immediately obvious. Rule 51. INSTRUCTIONS TO JURY: OBJECTION “At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the request prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Emphasis added). Plaintiffs-appellees’ counsel had requested an interrogatory on N.A.B.’s independent gross negligence. Because no interrogatory on N.A.B.’s independent gross negligence was included in the original verdict form, N.A.B. maintains that it was led to believe that the request had been refused. N.A.B. contends that it was prejudiced by the addition of the interrogatory after summation because it was lulled into not mentioning this issue to the jury, believing that it was no longer an open question. Moreover, N.A.B. argues that it was error for the trial court to submit an interrogatory to the jury which its counsel had no opportunity to see or comment upon prior to closing arguments. Plaintiffs-appellees respond that the trial court was using special interrogatories accompanying a general verdict, pursuant to F.R.Civ.P. 49(b), and therefore it was not necessary that they be shown to counsel prior to argument. They also point out that their contentions with regard to the independent negligence of the trucking company were clear throughout the proceedings up to and including the motion for a directed verdict and the initial phase of their closing argument. To resolve this issue, it is necessary to consider not only Rule 51, supra, but also F.R.Civ.P. 49, the text of which is set out in the margin. Our analysis is not aided by the fact that there is some confusion in the authorities on the interplay of Rules 49(a), 49(b) and 51. Although there has been some misleading language in some of the opinions, we believe the cases can be harmonized. In addressing this task, it is essential to distinguish between a Rule 49(a) special verdict and special interrogatories submitted under Rule 49(b). A Rule 49(a) special verdict is designed to cover all of the material factual issues in the cases. Its purpose is to ascertain how the jury has resolved these issues. The court is to enter a judgment on the basis of the jury’s answer to the special verdict interrogatories without using a general verdict. Not surprisingly, therefore, it has been held that Rule 51 requires that counsel be advised at least of the court’s intent to use Rule 49(a) interrogatories, so that counsel may have an opportunity pursuant to Rule 51 to make special requests for interrogatories and supplemental instructions. As one court has pointed out, this practice “is required to enable counsel intelligently to prepare requested charges, determine all of the issues which must be submitted, and then to plan an effective argument whose objective is to translate persuasion into specific decisive action by the jury.” Where the case is complex or the issues have developed late in trial, it has also been held that it may be an abuse of discretion for the trial court not to disclose in advance the exact form of the Rule 49(a) interrogatories it proposes to use. One court has even held that it is mandatory to show all proposed Rule 49(a) special interrogatories to counsel in advance of final argument. There being no authority with regard to this issue in this circuit, we hereby adopt the following view with regard to the interrelationship of Rule 49(a) and Rule 51. We consider it the better and safer practice in all cases where Rule 49(a) is to be employed for the trial court to submit the actual special interrogatories and supplementary instructions to counsel in writing in advance of argument. But we hold that the disclosure prior to final argument of at least the substance of the Rule 49(a) special verdict interrogatories and supplemental instructions is mandatory. Further, we note that it may be an abuse of discretion to fail to show the Rule 49(a) interrogatories to counsel in advance of argument where, because of exceptional circumstances, such as the complexity of the case, unfairness would otherwise result. These views are in accord with the generally accepted interpretation of Rule 51 that in the federal courts counsel have no right to be apprised of the exact language of any instruction, even where special requests are made. Indeed, in federal practice, the court may instruct orally and the form of the instructions is within its discretion, so long as their substance is correct, and the parties have been substantially advised of the rulings on counsel’s requests. Although it is obvious that Rule 49(a) interrogatories must be reduced to writing, we do not feel justified, considering traditional practice under Rule 51, in following the Third Circuit in holding that submitting the interrogatories to counsel in advance of argument is always mandatory. We hasten to distinguish this court’s decision in Brown v. Tennessee Gas Pipeline Co. As the text of that case clearly indicates, this was a Rule 49(b) case, where, as provided in that sub-rule, the special interrogatories were used to test a general verdict. This court correctly pointed out that, where Rule 49(b) is employed, there is no necessity, and it may even be undesirable, to submit the interrogatories to counsel in advance of argument, because it would defeat the testing function of Rule 49(b) interrogatories if counsel were permitted to suggest to the jury in argument how they should be answered. Our difficulties in dealing with the sometimes ambiguous precedents on this subject are compounded by the equivocal use of the special interrogatories in this case. Analysis of the record reveals that the trial court, although submitting the special interrogatories in conjunction with a general verdict, did not use them for the purpose of testing that verdict, but for determining the jury’s resolution of the issue of independent gross negligence of the trucking company. The answers to the special interrogatory submitted in the first phase of the case were used as the basis for submitting to the jury special interrogatories in the damages phase, which permitted them to return punitive damages verdicts against the two defendants in separate amounts. The jury was instructed in the damages phase that independent negligence had already been established by its responses to the interrogatories in the liability phase. The general verdict presented to the jury in the liability phase was in effect superfluous. Therefore, the special interrogatories submitted in the liability phase must be regarded as submitted under Rule 49(a). As we have said, we are of the view that Rule 51, when read in conjunction with Rule 49(a), requires that counsel be advised of the intent of the court to respond to counsel’s requests for instructions by using special interrogatories, and of at least the substance of the interrogatories. Here, however, the context of the proceedings indicates that the failure to give the special interrogatory on the issue of the independent negligence of the trucking company was mere inadvertence by the court. This omission could and undoubtedly would have been cured, if called to the court’s attention by an objection to counsel for plaintiffs’ raising that issue in the first portion of his final argument. In this case, no prejudice resulted from the failure of the trial court to disclose prior to summation the interrogatory concerning the gross negligence of N.A.B. Counsel for N.A.B. was well aware that the independent gross negligence of N.A.B. was at issue. As the plaintiffs-appellees note, the issue of the independent gross negligence of N.A.B. was raised in the complaint, in a letter to the magistrate, in the final pretrial order, in their requests for jury instructions, and in the testimony of witnesses during the trial. Moreover,'in response to N.A.B.’s motion for a directed verdict on the issue of gross negligence, counsel for plaintiffs-appellees emphatically argued that there was sufficient evidence of independent gross negligence on behalf of N.A.B. From the context, it is evident that the motion for a directed verdict was denied in part because the trial judge felt that evidence of independent gross negligence existed. Thus, at the time that the original verdict form was given to the parties, there can be no doubt that the independent gross negligence of N.A.B. was at issue and everyone was aware of it. Had counsel for N.A.B. understood the tender of the original verdict and interrogatories as being a ruling under Rule 51 that plaintiffs’ request to instruct on the independent negligence had been denied by the court, counsel for N.A.B. would surely have made an objection during the closing argument when this issue was raised. In light of the forceful arguments made on this issue by his adversary, counsel for the trucking company can hardly claim to have been surprised by the special interrogatory. Therefore, this court holds that there was no prejudice in the court’s adding the additional interrogatory to cover a matter that everyone knew was crucial in the case but had been inadvertently omitted. This conclusion is confirmed by the consideration that, if counsel had truly felt that he was prejudiced, he could have requested further argument on the additional interrogatory to the jury, and the failure of experienced and able counsel for the defendant to do so, again indicates to this court that there was no surprise on his part occasioned by the additional interrogatory, and therefore no prejudice. Any error on the part of the trial court was harmless and reversal is not appropriate. Therefore, the judgment of the trial court must be, and is, hereby AFFIRMED. After the oral argument herein the case against Walkup was settled. . The present definition for conduct for which punitive damages would be allowed under Tennessee law may be found in Richardson v. Gi- balski, 625 S.W.2d 715 (Tenn.App.1979), as follows: “As has been pointed out by our appellate courts so many times, it takes something far greater than lack of ordinary care to sustain an award for punitive damages.... They are awarded in cases involving fraud, malice, gross negligence or oppression ... or where a wrongful act is done with a bad motive or so recklessly as to imply a disregard of social obligation, ... or where there is such willful misconduct or entire want of care as to raise a presumption of conscious indifference to consequences ... or to amount to positive misconduct.” . Transamerica Insurance Group v. Beem, 652 F.2d 663, 665 n. 3 (6th Cir.1981), and cases there cited. . The verdict form read: VERDICT FORM Special Issues “(1) We, the jury, find that the defendant, JOHN A. WALKUP, (was — was not) guilty of gross negligence that proximately caused or proximately contributed to cause the accident that occurred upon September 29, 1978. “(2) We the jury, find that the plaintiffs decedent, Henry H. Sakamoto, (was — was not) guilty of negligence which proximately contributed to cause the accident that occurred upon September 29, 1978. “(3) [If your answer to Issue No. (2) is that the plaintiffs decedent, Henry H. Sakamoto, “was not” guilty of proximate contributory negligence, then answer Issue No. (3) ] We, the jury, find that the plaintiffs decedent, Henry H. Sakamoto, (was — was not) guilty of remote contributory negligence with regard to the accident that occurred upon September 29, 1978. General Verdict “(4) We, the jury, find that the plaintiff, YASUKO N. SAKAMOTO, Administratrix of the Estate of Henry H. Sakamoto, (is — is not) entitled to recover of the defendants, N.A.B. TRUCKING CO., INC., and JOHN A. WALK-UP.” Jury Foreperson .Plaintiff’s counsel stated in part: “Now, ladies and gentlemen, in addition to that, on top of that, the defendant N.A.B. Trucking Company is liable for gross negligence in addition to the negligence that they are liable for by their employee, John Walk-up, from the illegal, willful and wanton conduct in the following respects: One, despite the obvious danger to other motorists on the highway, N.A.B. Trucking Company’s dispatcher directed John Walkup, who reported the mechanical problems up above Knoxville, to proceed from Knoxville to Waycross, Georgia, without having the tractor inspected or repaired. They didn’t care about who got killed or who got injured, their interest was getting that load of dog food down to Jacksonville, Florida. “Now, that is wanton conduct.” (Tr. 473). . Rule 49. SPECIAL VERDICTS AND INTERROGATORIES “(a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. “(b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.” . Harville v. Anchor-Wate Co., 663 F.2d 598, 602 (5th Cir.1981); National Bank of Commerce v. Royal Exchange Assurance of America, Inc., 455 F.2d 892, 898 (6th Cir.1972); Wright & Miller, Federal Practice & Procedure, § 2506 at 499 (1971). . Wright & Miller, supra note 7, § 2510 at 519-520. . Clegg v. Hardware Mutual Casualty Co., 264 F.2d 152, 157 (5th Cir.1959). . Id. . Cutlass Productions, Inc. v. Bregman, 682 F.2d 323, 330 (2d Cir.1982). . Smith v. Danyo, 585 F.2d 83, 88 (3d Cir.1978). . 5A Moore's Federal Practice ¶ 51.06 (1982). . 623 F.2d 450 (6th Cir.1980). . Some confusion has arisen by reason of the fact that the case of Cramer v. Hoffman, 390 F.2d 19 (2d Cir.1968), which stated it was discretionary with the court to show interrogatories to counsel in advance of argument, has been discussed by some courts as a Rule 49(a) case when a careful reading of the opinion shows it was a Rule 49(b) case. Therefore, we read that case as supporting our discussion herein with regard to both Rules 49(a) and 49(b). . F.R.Civ.P. 61; Clegg v. Hardware Mutual Insurance Co., 264 F.2d 152 (5th Cir.1959); Smith v. Danyo, 585 F.2d 83 (3d Cir.1978). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES v. GALLETTI et al. No. 02-1389. Argued January 12, 2004 Decided March 23, 2004 Kent L. Jones argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General O’Connor, Deputy Solicitor General Hungar, Thomas J. Clark, and Andrea R. Tebbets. David R. Haberbush argued the cause for respondents. With him on the brief were Joel Barry Feinberg, A. Lavar Taylor, and Charles F. Rosen. Justice Thomas delivered the opinion of the Court. Section 6501(a) of the Internal Revenue Code states that, except as otherwise provided, “the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed . . . and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.” 26 U. S. C. § 6501(a). If a tax is properly assessed within three years, however, the statute of limitations for the collection of the tax is extended by 10 years from the date of assessment. § 6502(a). We must decide in this case whether, in order for the United States to avail itself of the 10-year increase in the statute of limitations for collection of a tax debt, it must assess the taxes not only against a partnership that is directly liable for the debt, but also against each individual partner who might be jointly and severally liable for the debts of the partnership. Under California law a partnership maintains a separate identity from its general partners, and the partners are only secondarily liable for the tax debts of the partnership, as they are for any debt of the partnership. Because, in this case, the only relevant “taxpayer” for purposes of §§6501-6502 is the partnership, we hold that the proper assessment of the tax against the partnership suffices to extend the statute of limitations for collection of the tax from the general partners who are liable for the payment of the partnership’s debts. The Government’s timely assessment of the tax against the partnership was sufficient to extend the statute of limitations to collect the tax in a judicial proceeding, whether from the partnership itself or from those liable for its debts. I Respondents, Abel Cosmo Galletti, Sarah Galletti, Fran-cesco Briguglio, and Angela Briguglio, were general partners of Marina Cabrillo Company (Partnership). From 1992 to 1995, the Partnership failed to pay significant federal employment tax liabilities that it had incurred. Although the Internal Revenue Service (IRS) timely assessed those taxes against the Partnership in 1994,1995, and 1996, the Partnership never satisfied the debt. Respondents Abel and Sarah Galletti and respondents Francesco and Angela Briguglio filed joint petitions for relief under Chapter 13 of the Bankruptcy Code on October 20, 1999, and February 4, 2000, respectively. In the Gallettis’ proceedings, the IRS filed a proof of claim in the amount of $395,179.89 for unpaid employment taxes assessed between January 1994 and July 1995 against the Partnership. In the Briguglios’ proceedings, the IRS filed a proof of claim in the amount of $427,402.74. The proof of claim included secured claims totaling $403,264.06 for unpaid employment taxes assessed between January 1994 and November 1996 against the Partnership. Respondents objected to the claims on the ground that they were not proven against the estates. Respondents did not dispute that under California law they are jointly and severally liable for the debts of the Partnership. Nor did they dispute that the IRS had properly assessed the taxes against the Partnership within the 3-year statute of limitations, thereby extending the limitations period for collection of the taxes by 10 years. Rather, respondents argued that the timely assessment of the Partnership extended the statute of limitations only against the Partnership. To extend the 3-year statute of limitations against the general partners, respondents argued, the IRS had to separately assess the general partners within the 3-year limitations period. Because it did not, and because the 3-year limitations period had expired, respondents argued that the IRS could no longer collect the debt from them. The Bankruptcy Court and the District Court agreed and sustained respondents’ objections to the claims. The Court of Appeals for the Ninth Circuit affirmed. The Government argued that the Code does not require that the individual partners be assessed within the 3-year period prescribed by § 6501 and that the IRS made a valid assessment of the taxpayer here because the Partnership is the only relevant “taxpayer.” The Court of Appeals held that since respondents are “taxpayers” under § 7701(a)(14), which defines “taxpayer” to mean “any person subject to any internal revenue tax,” they are also “taxpayers” under §§6203 and 6501. As such, the Court of Appeals held that “[t]he assessment against the Partnership extended the statute of limitations only with respect to the Partnership.” 314 F. 3d 336, 340 (2002). The Government argued in the alternative that because respondents conceded that they were liable for the Partnership’s employment tax debts as a matter of California law, the Government had a right to payment, which suffices to prove a valid claim in bankruptcy. See 11 U. S. C. § 101(5)(A) (defining “claim” as including a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured”). The Court of Appeals rejected this argument because, under California law, a creditor must obtain a judgment against a partner before holding that partner liable for the partnership’s debt. Cal. Corp. Code Ann. § 16307(c) (West Supp. 2004). At the time the United States filed its proof of claim, it had not obtained a separate judgment against respondents, and the time for obtaining a judgment under the Internal Revenue Code against respondents had expired. We granted certiorari, 539 U. S. 940 (2003), and now reverse. II Section 6501(a) of the Internal Revenue Code provides that “the amount of any tax imposed [by the Code] shall be assessed within 3 years after the return was filed.” 26 U. S. C. § 6501(a). “The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary [of the Treasury] in accordance with rules or regulations prescribed by the Secretary.” §6203. Within 60 days of the assessment, the Secretary is required to “give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof.” § 6303(a). If the tax is properly assessed within 3 years, the limitations period for collection of the tax is extended by 10 years from the date of the assessment. § 6502. The dispute in this case centers on whether the United States can collect the Partnership’s unpaid employment taxes from respondents in a judicial proceeding occurring more than three years after the tax return was filed but within the 10-year extension to the 3-year limitations period that attached when the tax was timely assessed against the Partnership. Respondents insist that a valid assessment (that is, one that would trigger the 10-year increase in the statute of limitations) must name them individually. This is so, according to respondents, because they are primarily liable for the tax debt, both because they are “the [relevant] taxpayer^]” under §6203 and because they are jointly and severally liable for the tax debts of the Partnership. We reject both arguments in turn. A Respondents argue, and the Court of Appeals agreed, that each partner is primarily liable for the debt and must be individually assessed because each partner is a separate “taxpayer” under 26 U. S. C. §6203. The statutory definition of “taxpayer” includes “any person subject to any internal revenue tax,” and “person” includes both “an individual” and a “partnership,” §§ 7701(a)(14), (a)(1). The Court of Appeals observed that although the Partnership is a “taxpayer,” each individual partner is also a separate “taxpayer.” As such, the Court of Appeals interpreted § 6203’s requirement that the Secretary of the Treasury record “the liability of the taxpayer” to require a separate assessment against each of the general partners. Although the Court of Appeals correctly concluded that an individual partner can be a “taxpayer,” the inquiry does not end there. Section 6203 speaks of “the liability of the taxpayer” (emphasis added), which indicates that the relevant taxpayer must be determined. The liability in this case arose from the Partnership’s failure to comply with § 3402(a)(1) of the Code, which requires “every employer making payment of wages” to deduct and withhold employment taxes. Moreover, “[t]he employer shall be liable for the payment of the tax required to be deducted and withheld.” §3403. When an employer fails to withhold and submit the requisite amount of employment taxes, §3403 makes clear that the liable taxpayer is the employer. In this case, the “employer” was the Partnership. B Respondents also argue that they are primarily liable for the Partnership’s tax debt because, under California law, general partners are jointly and severally liable for the debts of their partnership, Cal. Corp. Code Ann. §16306 (West Supp. 2004). Brief for Respondents 8-16. As our prior discussion demonstrates, however, respondents cannot show that they are primarily liable for the payment of the Partnership’s employment taxes unless they can show that they are the “employer.” However, under California’s partnership principles, a partnership and its general partners are separate entities. See § 16201. Thus respondents cannot argue that, for all intents and purposes, imposing a tax directly on the Partnership is equivalent to imposing a tax directly on the general partners. Respondents must instead prove that the tax liability was imposed both on the Partnership and respondents as separate “employers.” The fact that respondents are jointly and severally liable for the debts of the Partnership is irrelevant to this determination. Ill We now turn to the question whether the Government must make separate assessments of a single tax debt against persons or entities secondarily liable for that debt in order for § 6502’s extended statute of limitations to apply to those persons or entities. We hold that the Code contains no such requirement. Respondents’ argument that they must be separately assessed turns on a mistaken understanding of the function and nature of an assessment as identical to the initiation of a formal collection action against any person or entity who might be liable for payment of a debt. In its numerous uses throughout the Code, it is clear that the term “assessment” refers to little more than the calculation or recording of a tax liability. See, e. g., 26 U. S. C. § 6201 (assessment authority); § 6203 (method of assessment); § 6204 (supplemental assessments); 26 CFR § 601.103 (2003). See also Black’s Law Dictionary 111 (7th ed. 1999) (defining “assessment” as the “[d]etermination of the [tax] rate or amount of something, such as a tax or damages”). “The Federal tax system is basically one of self-assessment,” whereby each taxpayer computes the tax due and then files the appropriate form of return along with the requisite payment. 26 CFR § 601.103(a) (2003). In most cases, the Secretary accepts the self-assessment and simply records the liability of the taxpayer. Where the taxpayer fails to file the form of return or miscalculates the tax due, as in this ease, the Secretary can assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties),” 26 U. S. C. § 6201(a), by “recording the liability of the taxpayer in the office of the Secretary,” §6203. In other words, where the Secretary rejects the self-assessment of the taxpayer or discovers that the taxpayer has failed to file a return, the Secretary calculates the proper amount of liability and records it in the Government’s books. To be sure, the assessment of a tax triggers certain consequences. After the amount of liability has been established and recorded, the IRS can employ administrative enforcement methods to collect the tax. §§6321-6327, 6331-6334. The assessment of a tax liability also extends the period during which the Government can collect the tax. But the fact that the act of assessment has consequences does not change the function of the assessment: to calculate and record a tax liability. Under a proper understanding of the function and nature of an assessment, it is clear that it is the tax that is assessed, not the taxpayer. See § 6501(a) (“the amount of any tax ... shall be assessed”); § 6502(a) (“[wjhere the assessment of any tax”). And in United States v. Updike, 281 U. S. 489 (1930), the Court, interpreting a predecessor to § 6502, held that the limitations period resulting from a proper assessment governs “the extent of time for the enforcement of the tax liability,” id., at 495. In other words, the Court held that the statute of limitations attached to the debt as a whole. The basis of the liability in Updike was a tax imposed on the corporation, and the Court held that the same limitations period applied in a suit to collect the tax from the corporation as in a suit to collect the tax from the derivatively liable transferee. Id., at 494-496. See also United States v. Wright, 57 P. 3d 561, 563 (CA7 1995) (holding that, based on Updike’s principle of “all-for-one, one-for-all,” the statute of limitations governs the debt as a whole). Once a tax has been properly assessed, nothing in the Code requires the IRS to duplicate its efforts by separately assessing the same tax against individuals or entities who are not the actual taxpayers but are, by reason of state law, liable for payment of the taxpayer’s debt. The consequences of the assessment — in this case the extension of the statute of limitations for collection of the debt — attach to the tax debt without reference to the special circumstances of the secondarily liable parties. In this case, the tax was properly assessed against the Partnership, thereby extending the statute of limitations for collection of the debt. The United States now timely seeks to collect that debt in judicial proceedings against respondents. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Because the Government is attempting to enforce the Partnership’s tax liabilities against respondents in a judicial proceeding, we do not address whether an assessment only against the Partnership is sufficient for the IRS to commence administrative collection of the Partnership’s tax debts by lien or levy against respondents’ property. We also decline to address whether an assessment against the partnership suffices to trigger liability against the partners for interest and penalties without separate notice and demand to them. Respondents argue that even if we were to hold that the partners are secondarily liable, the IRS would still be barred from collecting the taxes. Respondents contend that if partners are not “taxpayers” under § 6203, then their liability arises only under state law, and the state 3-year statute of limitations therefore applies. Brief for Respondents 30-34. Respondents have forfeited this argument, by failing to raise it in the courts below. Indeed, the closest respondents have come to arguing that the state limitations period applies was in the Court of Appeals, when respondents argued that “under California law, any collections suit filed against a partner to collect a partnership debt is subject to the statute limitation provision which applies to the underlying debt of the partnership.” Appellee’s Opening Brief in Nos. 01-55953, 01-55954 (CA9), p. 14. This argument, of course, is contrary to respondents’ position in this Court. Our decision is consistent with this Court’s holding in United States v. Williams, 514 U. S. 527, 532-536 (1995), where we interpreted “taxpayer” under 26 U. S. C. § 6511 more broadly. Here, it is clear that we must interpret “the taxpayer” under § 6203 with reference to the underlying liability. We use the term “secondary liability” to mean liability that is derived from the original or primary liability. The Court of Appeals also held that the claims were barred by California partnership law, which requires a creditor first to obtain a judgment against a partnership before holding the partners liable for the partnership’s debt. 314 F. 3d 336, 344 (CA9 2002). When respondents filed for bankruptcy, an automatic stay barred the Government from bringing suit outside the Bankruptcy Court to enforce respondents’ secondary liability. 11 U. S. C. § 362(a)(1). Respondents do not dispute, however, that the adjudication of a disputed claim satisfies California's requirement that there be a “judgment against a partner.” Cal. Corp. Code Ann. § 16307(c) (West Supp. 2004). Moreover, a claim is allowable in bankruptcy “whether or not such right is reduced to judgment.” 11 U. S. C. § 101(5)(A). 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_trialpro	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Edward EGGENBERGER, Appellant, v. ERIE RAILROAD COMPANY. No. 11430. United States Court of Appeals, Third Circuit. Argued Feb. 23, 1955. Decided March 4, 1955. I. Reines Skier, Hawley, Pa., for appellant. Joseph C. Kreder, Scranton, Pa. (Walter L. Hill, Jr., Edward W. Warren, of Harris, Warren, Hill & Henkelman, Scranton, Pa., on the brief), for appel-lee. Before GOODRICH, KALODNER and STALEY, Circuit Judges. PER CURIAM. This is an appeal from a judgment for the defendant in a personal injury case. The case, which arose out of a grade crossing accident, was tried to the court who made full findings of fact. Those findings depend upon his acceptance of one line of testimony which was inconsistent with the evidence given for the plaintiff. This is the type of case where Rule 52(a), 28 U.S.C., is, by its own terms, especially applicable. The court’s findings are not clearly erroneous. There is no disputed proposition of law. The judgment of the district court, 122 F.Supp. 481, will be affirmed. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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". WELSH V. AMERICAN SURETY CO. OF NEW YORK et al. No. 13265. United States Court of Appeals ‘ Fifth Circuit. Jan. 17, 1951. H. O. Williams, San Angelo, Tex., for appellant. Dorsey B. Hardeman, San Angelo, Tex., for appellees. Before HUTCHESON, Chief Judge, and McCORD, and BORAH, Circuit Judges. BORAH, Circuit Judge. Steve Welsh sued V. O. Earnest, sheriff of Crockett County, Texas, and American Surety Company of New York, surety on the sheriff’s official bond, to recover damages for personal injuries inflicted on Welsh during the course of and following his arrest. The action was dismissed on defendants’ motion and plaintiff has appealed. The only question here is whether the District Court had jurisdiction to hear and determine the complaint. Plaintiff relied upon diversity of citizenship and the requisite amount in controversy as the basis of jurisdiction. The narrow and specific point in issue is whether at the time of the commencement of this suit plaintiff was a bona fide citizen of the State of New Mexico, within the meaning of Title 28 U.S.C.A. § 1332(a) (1). The suit was brought on March 6, 1950, and it was alleged in the complaint that plaintiff was a resident and citizen of the State of New Mexico; and that defendant Earnest was a citizen of the State of Texas; and that defendant American Surety Company of New York was a New York corporation licensed to do business and doing business in Texas. In response to the complaint the defendants filed a motion to dismiss the action on the ground that the court was without jurisdiction because plaintiff is and has been for many years a bona fide citizen of the State of Texas. The court heard evidence om the motion and in its order dismissing the complaint for want of jurisdiction found, “that although plaintiff resides in the State of New Mexico * * * it has not been established by reasonably satisfactory evidence that plaintiff intends to reside permanently in New Mexico and that the evidence of diversity of citizenship of the plaintiff and defendant, V. O. Earnest, is insufficient to establish a ground for jurisdiction * * The findings are challenged on the ground that they are against the evidence and are clearly wrong. Plaintiff had been a resident of Texas. He contends that he ended his residence and citizenship there and established residence and citizenship in New Mexico in February, 1950, less than one month prior to the institution of the action. Now, it is elementary that, to effect a change of one’s legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto ct animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains. Mitchell v. United States, 21 Wall. 350, 352, 22 L.Ed. 584; Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027. Plaintiff’s allegation of citizenship in New Mexico was not sufficient. When challenged as here, the burden rested on him to show by a preponderance of the evidence that he was a citizen of that State. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Town of Lantana, Florida v. Hooper, 5 Cir., 102 F.2d 118. There was evidence in the record which fairly tended to prove these facts. Plaintiff lived in California for twenty-six years. In 1946 he moved to Ozona, Texas, and in the same year he married. During the years that followed he often declared that he intended to return to California and he informed his wife that he would remain in Ozona only during the lifetime of her sick and aged father. On December 28, 1949, his father-in-law died. After finishing up a job on which he was then working plaintiff went to a Mr. Couch and told him that he was leaving but doubted if he had sufficient money to take him to California and asked Couch if he would purchase his trailer for two hundred dollars. Couch did not have the money but he advised plaintiff to go to Hobbs, New Mexico where Couch’s nephew, a contractor, would assist plaintiff in securing employment, thereby enabling him to work his way back to California. Plaintiff arrived in Hobbs, New Mexico on February 3, 1950 and on the following day he secured employment. The testimony with regard to plaintiff’s intention is illuminating. Plaintiff testified that he decided to stay in New Mexico when he secured employment and “got the second chance to go to work.” It is the testimony of the witness Couch that plaintiff told him shortly before the hearing, which was on May 26, 1950, that “he liked Hobbs so well he believed he was going to make it his home.” And according to the wife’s version, plaintiff decided, after they were there just a short while, “that he believed he would stay at Hobbs, New Mexico, and make his home there.” The witness Cade testified that plaintiff told him that he was going to file suit in San Angelo, Texas, and that he had to move out of the State of Texas in order to file this suit in the Federal Court. Declarations of intention to establish residence in a particular locality are of course to be given full and fair consideration, but like other self serving declarations may lack persuasiveness or be negatived by other declarations and inconsistent acts. To bring about a domiciliary change there must be a conjunction, of physical presence and animus manendi in the new location. The question is always one of compound fact and law, and one which the trial judge, having an opportunity to hear the testimony, and observe the witnesses, is most competent to judge of their credibility and we are not warranted in setting aside his findings and conclusions unless clearly erroneous. We are satisfied that the court did not misapprehend the testimony and that its findings as to the weight of the evidence should be left undisturbed. Accordingly, the judgment of the District Court is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "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_sentence	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". WELLMAN INDUSTRIES, INC., Appellant, v. The NATIONAL LABOR RELATIONS BOARD et al., Appellees. No. 73-1581. United States Court of Appeals, Fourth Circuit. Argued Nov. 7, 1973. Decided Jan. 22, 1974. Jeffrey S. Dubin, Great Neck, N. Y. (Peter D. Hyman, Hyman, Morgan & Brown, Florence, S. C., and Mirkin, Barre, Saltzstein & Gordon, P. C., Great Neck, N. Y., on brief) for appellant. R. Bruce McLean, Atty., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Abigail Cooley, Asst. Gen. Counsel, NLRB, on brief) for appellees. Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges. CRAVEN, Circuit Judge: Wellman Industries, Inc., appeals from an order of the district court denying it access under the Freedom of Information Act, 5 U.S.C. § 552, to affidavits obtained by an NLRB investigator during his inquiry into Union objections to a representation election held at Well-man’s Johnsonville, South Carolina, facility. These affidavits, Wellman alleges, were the basis of an order by the Regional Director of the NLRB setting aside that election. At a second election a majority of Wellman’s employees chose the Union as their bargaining representative, and the Union was so certified after objections by Wellman were dismissed and a Request for Review denied by the Regional Director. On September 26, 1972, the Union requested that Wellman bargain; that request was refused on October 4, 1972. The Board then issued a complaint charging the Company with refusal to bargain under Section 8(a)(5) of the National Labor Relations Act, 29 U. S.C. § 158(a)(5). The Company raised the defense of improper certification; whereupon General Counsel for the Board moved for summary judgment, and the matter was transferred to the Board in Washington, D. C., by order dated November 15, 1972. Wellman filed a statement in opposition to the motion for summary judgment, together with cross-motions seeking affidavits and memoranda under the FOIA. On May 30, 1973, the motion for summary judgment was denied by the Board and the case remanded to the Regional Director for a hearing on the question of newly-discovered evidence relating to the April 1972 (second) election. On January 25, 1973, the Company filed the complaint in this case. Without specifically deciding whether exemptions 4 and 7 of the FOIA were applicable, the district court relied upon its equitable power not to issue an injunction where an adequate remedy at law was available and where such action would produce circuity of action, stating : “Foremost in the mind of the Court is the fact that the question of the Plaintiff’s rights under the Freedom of Information Act will be before the Circuit Court of Appeals in the very near future, whether this Court does or does not issue an injunction.” Wellman appeals, and we affirm, though not for the reasons given by the district judge. The district court’s “balancing of the equities” approach to withholding injunctive relief under the FOIA is not without support, see General Services Administration v. Benson, 415 F.2d 878 (9th Cir. 1969); Consumers Union v. Veterans Administration, 301 F.Supp. 796 (S.D.N.Y.1969); Davis, Administrative Law Treatise § 3A.6, at 123-24 (1970 Supp.) (hereinafter cited as Davis). However, this court noted in Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971), that: After considering voluminous testimony on both sides and balancing the public, private, and administrative interests, Congress decided that the best course was open access to the governmental process with a very few exceptions. It is not the province of the courts to restrict that legislative judgment under the guise of judicially balancing the same interests that Congress has considered. 444 F.2d at 24-25. Again, in Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973), we said, in another context: Equally unpersuasive is the argument that disclosure should be refused because it “would do more harm than good”. Such an argument has nothing to do with “personal privacy” but is rather an argument that courts, in disposing of actions under the Act, may exercise discretion to grant or deny equity relief. While such argument has received some limited support, the better reasoned authorities find no basis for this balancing of equities in the application of the Act; indeed, the very language of the Act seems to preclude its exercise. 484 F.2d at 847. We adhere to that viewpoint and hold that 5 U.S.C. § 552(c) means what it says: that the Act “does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.” (emphasis added.) We must, therefore, look to the specific exemptions provided for in the Act. The Board suggests the affidavits are protected from disclosure as within two exemptions: (1) “trade secrets and commercial or financial information‘obtained from a person and privileged or confidential;” and (2) “investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency; . ” We think the affidavits are clearly within the second exemption and thus need not decide whether they also fall within the former. See generally, Consumers Union v. Veterans Administration, 301 F.Supp. 796, 802 (S.D.N.Y. 1969); Davis, supra at § 3A.19. Wellman argues that while the investigatory files exemption applies to information obtained after an unfair labor practice complaint has been filed, it does not protect material obtained in Board investigations of representation election irregularities prior to the filing of an unfair labor practice charge since no enforcement proceedings were contemplated and the entire process was nonadver-sary in nature. But see Evans v. Department of Transportation, 446 F.2d 821 (5th Cir. 1971). While it is true that the cases cited by the Board uphold non-disclosure under exemption 7 only with regard to files assembled after an unfair labor practice complaint was filed by the Board, Clement Bros., Inc. v. NLRB, 282 F.Supp. 540 (N.D.Ga.1968); Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (D.P.R.1970), we believe appellant urges too narrow a view of “law enforcement purposes.” Congress has given the Board wide discretion in the enforcement of rights guaranteed by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157. Under Section 9 of the NLRA, 29 U.S.C. § 159, the Board is responsible for supervising elections, investigating election irregularities and certifying bargaining representatives. When an election investigation is undertaken, as in this case, there is no certainty that an unfair labor practice proceeding under Section 8 will follow. The election irregularities themselves may be sufficient to trigger an unfair labor practice complaint, see NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L. Ed.2d 547 (1969), or they may lead only (as here) to voiding the results of the election and the holding of a second election. In this latter case there is no direct review of such a determination, and in order to challenge the union’s certification the employer must refuse to bargain, triggering unfair labor practice proceedings under Section 8(a)(5), as Wellman has done. A.F.L. v. NLRB, 308 U.S. 401, 407-409, 60 S.Ct. 300, 84 L.Ed. 347 (1940); Boire v. Greyhound Corp., 376 U.S. 473, 476-479, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). Whether or not resulting in an unfair labor practice charge, the Board’s purpose here was to protect and vindicate rights set out in Section 7. Though procedures vary, if aimed at enforcement of the NLRA we think they are “for law enforcement purposes.” The legislative history of exemption 7 clearly supports such an interpretation. The House Report states: This exemption covers investigatory files related to enforcement of all kinds of laws, labor and securities laws as well as criminal laws. This would include files prepared in connection with related Government litigation and adjudicative proceedings. S. 1160 is not intended to give a private party indirectly any earlier or greater access to investigatory files than he would have directly in such litigation or proceedings. H.R.Rep.No.1497, 89th Cong.2d Sess. 11 (1966), U.S.Code Cong. & Admin.News 1966, p. 2428 (emphasis added). The Senate Report, in not so broad terms, indicates that: These [investigatory files] are the files prepared by Government agencies to prosecute law violators. Their disclosure of such files, except to the extent they are available by law to a private party, could harm the Government’s ease in court. S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965). While the Senate’s use of the term “law violators” might be construed to mean transgressions of the criminal law, it can also easily be accommodated to the House statement without doing damage to the statutory language. See Clement Bros., Inc. v. NLRB, 282 F. Supp. 540 (N.D.Ga.1968); Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (D.P.R.1970). The practical reasons favoring application of exemption 7 have already been sufficiently exposited by this court and numerous others. We said in Intertype Co. v. NLRB, 401 F.2d 41 (4th Cir. 1968, cert, denied 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 1691 (1969), a case almost precisely identical with the case at bar, but decided prior to the effective date of the FOIA, relying on the language of NLRB v. National Survey Service, Inc., 361 F.2d 199, 206 (7th Cir. 1966) , that: If an employee knows that statements made by him will be revealed to an employer, he is less likely, for fear of reprisal, to make an uninhibited and non-evasive statement. 401 F.2d at 45. See also Intertype Co. v. Penello, 269 F.Supp. 573 (W.D.Va. 1967) . This same concern has continued to be echoed by courts since the enactment of the FOIA. See, e. g., Frankel v. SEC, 460 F.2d 813, 817-818 (2d Cir.), cert, denied 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 46 (1972); Evans v. Department of Transportation, 446 F.2d 821, 823-824 (5th Cir. 1971); Clement Bros., Inc. v. NLRB, 282 F.Supp. 540, 542 (N. D.Ga.1968). We have also stated our agreement with the proposition so clearly set out in the legislative history that exemption of investigatory files is necessary in order to prevent premature disclosure of an investigation so that the Board can present its strongest case in court. Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971). Wellman is not without protection from arbitrary action by the Board. See NLRB v. Poinsett Lumber and Mfg. Co., 221 F.2d 121 (4th Cir. 1955); W. T. Grant Co. v. NLRB, 337 F.2d 447 (7th Cir. 1964); NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402 (7th Cir.), cert, denied 368 U.S. 823, 82 S.Ct. 42, 7 L. Ed.2d 28 (1961). But there is no showing of arbitrary action in this case; therefore, the Company must await a final order of the Board and, if aggrieved, pursue its right of review in this court under Section 10(e) or (f) of the NLRA, 29 U.S.C. § 160(e) and (f). Affirmed. . The district court’s order referred to the Board’s argument that exceptions 4 and 7 exempted tire affidavits from disclosure under the FOIA as “rather weak” and went on to state: As to exception 7, it must be remembered that this is not information originally contained in “investigatory files compiled for law enforcement purposes”. The statements and affidavits were. taken in connection with the certification election, a non-adversary proceeding, and before any complaint was brought by the Board for an unfair labor practice. . The district judge stated in his order: In considering whether or not to issue an injunction, this Court must consider all of the facts before it, the purposes and needs of the parties, the burdens involved, the importance of the information and the reasons for non-disclosure. . These exemptions are contained in 5 U.S.C. § 552(b) (4) and (7) and are commonly referred to as exemptions 4 and 7. . See also Frankel v. Securities and Exchange Comm’n, 460 F.2d 813 (2d Cir.), cert, denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972) ; cf. Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 939-940, cert, denied 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). . The weight which we attribute to the legislative history of exemption 7 is considerably greater than that attributable to the legislative history of exemption 4 for reasons set out by Davis, supra, at § 3A.19 and § 3A.22. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_two_issues	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. KSLA-TV, INC., Plaintiff-Appellant Cross-Appellee, v. RADIO CORPORATION OF AMERICA, Defendant-Appellee Cross-Appellant, v. STAINLESS, INC., et al., Defendants-Appellees. No. 81-3528. United States Court of Appeals, Fifth Circuit. Dec. 14, 1982. McGlinchey, Stafford & Mintz, C.G. Nor-wood, Jr., B. Franklin Martin, New Orleans, La., for plaintiff-appellant cross-appellee. Bodenheimer, Jones, Klotz & Simmons, G.M. Bodenheimer, Shreveport, La., for RCA. Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., New Orleans, La., for Stainless. Alex F. Smith, Jr., Shreveport, La., for Bethlehem Steel Corp. Adams & Reese, Robert B. Nolan, New Orleans, La., for Lexington Ins. Co. Cook, Yancey, King & Galloway, Herschel E. Richard, Jr., Shreveport, La., for Home Ins. Co. Before BROWN, WISDOM and RANDALL, Circuit Judges. PER CURIAM: The appeal in this diversity action controlled by Louisiana law is from an order granting the defendant’s motion for summary judgment. The case involves the Louisiana preemptive statute, La.Rev.Stat. Ann. § 9:2772 (West Supp. 1981), as applied to a complaint seeking damages for the collapse of a broadcasting tower. On May 15, 1964, KSLA of Shreveport, Louisiana, and Radio No. Corporation of America (RCA) entered into a contract for the purchase and installation of a television tower, designed to hold an RCA television antenna. The contract provided for a tower 1,709 feet in height. RCA entered into a subcontract with Stainless, Inc. to design and fabricate the tower. Stainless informed KSLA on November 17, 1964, that “installation is in accordance with Stainless, Inc. drawings and ... no outstanding deficiencies on the tower exists [sic] at this time”. On October 8, 1977, the tower collapsed due to undetermined causes. KSLA filed this action on October 4, 1978, seeking damages from RCA and Stainless in the amount of $1,269,986 for out-of-pocket expenses, and $575,000 for loss of income. RCA filed a third party complaint against Stainless and Stainless filed a third party complaint against Bethlehem Steel, which had supplied Stainless with the steel components of the tower. Early in the litigation and before any discovery, RCA and, later, Stainless moved for summary judgment, alleging that KSLA’s claim was preempted under the ten-year liberative period that Louisiana Rev.Stat.Ann. § 9:2772 establishes for claims arising from “the construction of an improvement to immovable [real] property”. The statute is inapplicable to a contract of sale. The trial court denied these motions on the ground that resolution of the issue depended “upon the characterization of the transactions between KSLA and RCA as a construction contract or as a contract of sale”, an issue of fact inappropriate for summary disposition. The parties then engaged in extensive discovery. When discovery had been virtually completed Stainless renewed its motion for summary judgment relying on an affidavit and numerous exhibits to establish that the transaction was a construction contract, not a contract of sale to which § 2772 would be inapplicable. KSLA filed a cross-motion for summary judgment against RCA and Stainless, asserting that the preemptive statute was inapplicable, that KSLA was entitled to a judgment in its favor for breach of warranty, and that issues of material, fact precluded summary judgment in favor of Stainless. The district court granted the motion of Stainless for summary judgment and denied KSLA’s motion for summary judgment against RCA and Stainless. Later, the court granted motions by RCA and its insurers for summary judgment against KSLA, and Stainless was awarded summary judgment on a contractual indemnity claim RCA had asserted. KSLA moved for reconsideration and on denial of this motion appealed. RCA appealed the dismissal of its claim against Stainless. In his ruling the trial judge stated: KSLA opposes the motion on three distinct grounds. First, KSLA continues in its belief that the transaction was a contract of sale, so that § 2772 is inapplicable. KSLA argues alternatively that, even if the transaction was a construction contract, § 2772 cannot constitutionally be applied to this particular contract. Finally, KSLA contends that § 2772 does not apply to Stainless in its capacities as materialmen and manufacturer of component parts, and that a negligence action brought against Stainless in that capacity is not barred by § 2772. The trial judge’s opinion is well-researched, carefully reasoned, and correctly sets forth the applicable law. We adopt the opinion as our own and affirm the judgment as to the three issues the trial judge considered in his opinion. But on appeal, and in the memoranda KSLA filed in the district court on the motion for a summary judgment and also in support of the motion for reconsideration, KSLA raised two issues the trial judge did not specifically address. These are: 1) La.R.S. 9:2772 does not apply to negligence for failure to warn when the duty to warn arises from subsequently obtained knowledge; that is, knowledge of a defect obtained after the construction of the tower, here presumably the vulnerability of a tall tower to “galloping” guy wires. (The vibration of guy wires resulting from a relative low wind). 2) Preemption cannot be invoked to bar a claim against one who fraudulently conceals defects in his product. It is evident from the record and the briefs that the plaintiff gave a low priority to these contentions. Nevertheless, they were raised and should be disposed of in the first instance by the district court. We express no opinion as to the validity of these contentions or the effect that § 9:2772 has on these claims. The judgments of the district court on the various motions and cross-motions are AFFIRMED insofar as they are affected by the decision of the district court on the three issues discussed in its memorandum rulings. The case is REMANDED for further proceedings on the two issues not specifically addressed by the district court in its memorandum rulings. .As amended in 1978 and 1981, § 9:2772 provides: A. No action, whether ex contractu, ex de-licto, or otherwise, to recover on a contract or to recover damages shall be brought ... against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property: (1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or (2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; .. . B. The causes which are preempted within the time described above include any action: (1) For any deficiency in the . . . design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property; (2) For damage to property, movable or immovable, arising out of any such deficiency; . The completed structure, including the antenna, was 1800 feet high, had solid steel legs, and was held in position by 26 steel cables. The tower weighed 1,040,153 pounds and rested on a concrete slab weighing 104,000 pounds. Six concrete guy wire anchors, weighing 450,000 pounds and embedded 15 feet in the ground, provided additional support. . By subsequent amendments to the complaint KSLA added as defendants Paxton National Insurance Company, Lexington Insurance Company, Zurich Insurance Company, and Home Insurance Company, alleging that they insured RCA or Stainless against the claims asserted by KSLA. Question: Are there two issues in the case? A. no B. yes Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Harvey B. JOHNSON, Appellant, v. RAC CORPORATION, Appellee. No. 73-1958. United States Court of Appeals, Fourth Circuit. Argued Dec. 5, 1973. Decided Feb. 5, 1974. John P. McKenna, Washington, D. C. (Lawrence F. Rodowsky, Baltimore, Md., Rowley & Scott, Washington, D. C., Frank, Bernstein, Conaway & Goldman, Baltimore, Md., on brief), for appellant. Edmund P. Dandridge, Jr., Baltimore, Md. (Venable, Beatjer & Howard, Baltimore, Md., Bleakley, Platt, Schmidt & Fritz, New York City, on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: This is a products liability action to recover for personal injuries sustained in connection with a helicopter crash in the State of Virginia on December 31, 1970. Federal jurisdiction was based on diversity. The defendant RAC, alleged to be a Delaware corporation with its principal offices in New York, and one of the several defendants in the action, moved to dismiss on a number of grounds. Among the grounds of the motion was the claim of a failure on the part of the plaintiff to state a claim upon which relief could be granted against it. The basis of this ground was the voluntary corporate dissolution of the defendant more than three years before the institution of the suit pursuant to the provisions of the Delaware law, as established by the affidavit of the defendant’s “Chief Executive Officer” and “Chairman of the Board of Directors”. According to the defendant’s contention, the Delaware corporate statutory law proscribed the maintenance of any suit against a voluntarily dissolved Delaware corporation if the suit was filed more than three years after such dissolution. The plaintiff thereupon directed extensive interrogatories, to the defendant. In the affidavit submitted by the defendant, it appeared that the affiant became a director of the defendant in 1963 and Chairman of the Board of Directors June 19, 1969, over a year after its alleged dissolution, and became Chief Executive Officer in 1972, some four years after its dissolution. The affidavit also relates that the defendant has an employee who, living in Maryland but performing in Maryland no services for the defendant, does draw “checks relating to corporate activities outside Maryland.” In this affidavit, it is stated that, since 1965 the defendant has been “continued in existence solely for the purpose of disposing of certain remaining assets, dissolving and liquidating the proceeds of its sales to its stockholders, and pursuing tax refunds for prior years from the Federal Government and New York State.” The plaintiff’s interrogatories, among other things, sought, it is claimed by the plaintiff, to pierce the claim of the defendant that its activities were limited to dissolution and specifically inquired regarding the nature of the defendant’s continued operations. At this point, the defendant filed for a protective order to defer all discovery until after the motion to dismiss for failure to state a claim on which relief could be granted against it was ruled on. While no formal order was entered on this application of the defendant for a protective order, it would appear that all parties understood that no discovery as against this defendant would be permitted until this phase of defendant’s motion to dismiss on the ground that the statutory dissolution barred the maintenance of the action against it (the defendant) was disposed cf. The plaintiff complains that it was thereby denied a right to discovery in connection with this part of the motion to dismiss. The defendant replies that until the hearing the plaintiff had not pressed for further discovery. In any event, when this part of the motion to dismiss came on for hearing, the District Court denied the plaintiff’s request for discovery, assuming, it would seem, that the supporting affidavit submitted by the defendant was conclusive of the defendant’s right to a dismissal, and proceeded to dismiss the action against the defendant RAC. The plaintiff has appealed. We reverse. Both the plaintiff and the defendant have argued at length the construction of the Delaware statute which prescribes the time within which a suit must be brought against a voluntarily dissolved Delaware corporation. We do not, however, reach this point. The order of dismissal must be reversed on procedural grounds. The factual authority for the dismissal, as found by the- District Court, rests on the supporting affidavit submitted by the defendant, which purported to detail the circumstances relating to the defendant’s corporate dissolution, matters that did not appear in the complaint itself. When a motion to dismiss under Rule 12(b)(6) is founded on matters outside the pleadings, the District Court is obligated “to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56.” Carter v. Stanton (1972) 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569; Smith v. Blackledge (4th Cir. 1971) 451 F.2d 1201, 1202; Leviner v. Richardson (4th Cir. 1971) 443 F.2d 1338, 1342; Phillips v. Columbia Gas of West Virginia, Inc. (D.C.W.Va.1972) 347 F.Supp. 533, 535, aff. (4th Cir.) 474 F.2d 1342. In such event, the rule expressly provides that “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” And, as the Court said in Dale v. Hahn (2d Cir. 1971) 440 F.2d 633, 638, “It seems fair to include within the term ‘reasonable opportunity’ some indication by the court to ‘all parties’ that it is treating the 12(b) (6) motion as a motion for summary judgment”, with the consequent right in the opposing party to file counter affidavits or to pursue reasonable discovery. This was the procedure followed in Barnes v. A. Sind & Associates (D.C. Md.1963) 32 F.R.D. 39, 41, rev. on other grounds, (4th Cir.) 341 F.2d 676, where, after noticing “all parties” that it was treating the motion as one for summary judgment, gave the opposing party the right to “file his counter affidavits within 15 days after he has completed his discovery.” In Gould, Inc. v. Chafee (1971) 146 U.S.App.D.C. 206, 450 F.2d 667, 669, where, contrary to the procedure in Barnes, the Court had acted without giving the plaintiff the opportunity to rebut the showing of the defendant, the Court reversed a dismissal entered under Rule 12(b)(6), because, in deciding the motion on the affidavits submitted by the moving party, the Court had failed to give the opposing party “appropriate notice” of its right to contest the material facts set forth in the moving papers submitted in support of the motion. In this case, the District Court did not indicate to the parties that it was treating the 12(b)(6) motion as' a motion for summary judgment nor did it provide by appropriate order “reasonable opportunity” for the plaintiff to file any “material made pertinent to such a motion by Rule 56.” The plaintiff should have been afforded an opportunity, as the procedure followed in Barnes suggests, to employ discovery, in order to counter, if he could, the facts set forth in the defendant’s affidavit or to establish a factual basis for his action against the defendant; and this is especially so since the facts on which the defendant predicates its motion in this respect lie peculiarly within the knowledge of the defendant. Moreover, the right to maintain a products liability suit against a dissolved corporation, in process of liquidation under statutory authority, for post-dissolution-accrued claims has received at best limited judicial or textbook consideration. The plaintiff has suggested in argument that, contrary to the defendant’s contention in its affidavit submitted, the defendant, despite its dissolution, is not restricting itself to liquidating its business but may be engaged generally in carrying on its regular business. Whether this is a fact and, if a fact, can support this action should await the completion of discovery. Moreover, the Delaware corporate law vests the Chancery Court with discretion to extend the period allowed by Section 278 for suit against a dissolved corporation. 8 Del. Code Ann., § 278. The plaintiff should have the right to inquire whether such an extension has or has not been granted by the Chancery Court. Of course, the affidavit filed by the defendant indicates that none of these points just outlined will prove, after discovery, to support the maintenance of this action against the defendant. And this may well be true but we do not think the plaintiff should be absolutely foreclosed from any reasonable testing of the facts stated in that affidavit by discovery. The cause must accordingly be remanded in order to permit the plaintiff, within a reasonable time fixed by the District Court, to file such counter affidavits or material deemed pertinent to that part of defendant’s motion to dismiss that is based on 12(b)(6), after reasonable opportunity for discovery. The discovery should, though, be limited strictly to matters pertinent to this particular ground of the motion. Remanded with directions. . Rule 12(b)(6), Rules of Civil Procedure, 28 U.S.C. . Delaware Code, Title 8, § 275(b) (e), (1970, Cum.Supp.) A distinction has been made between a voluntary corporate dissolution and one arising out of a forfeiture for failure to pay license taxes or fees. Smith-Johnson Steamship Corporation v. United States (D.C.Del.1964) 231 F.Supp. 184, 186, n. 2; hut of., Ross v. Venezuelan-American Independent Oil Pro. Ass’n, Inc. (D.C.Del.1964) 230 F.Supp. 701, “relying on the dubious precedent of Wax v. Riverview Cemetery Co., 41 Del. [2 Terry] 424, 24 A.2d 431,” as the decision was described by the writers in 56 Cornell L.Rev. 865 at 888, n. 131. See, also, Watts v. Liberty Royalties Corporation (10th Cir. 1939) 106 F.2d 941, 944 (involving a Delaware corporation) : “ * » * It has generally been held that where charter laws provide for a cancellation and forfeiture of a corporate charter and corporate powers for failure to pay fees and also provide for a reinstatement of the powers of the corporation and for restoration of its charter upon the payment of its fees, the penalty provisions providing for the forfeiture of its charter rights are largely for the purpose of collecting the charter fees and do not end the life of the corporation.” To the same effect is Purcel v. Wells (10th Cir. 1956) 236 F.2d 469 (decided under Texas law). . Delaware Code, Title 8, § 278 (1968 Cum. Supp.). “It is well settled at common law and in the federal courts that a corporation which has been dissolved is as if it did not exist.” United States v. Safeway Stores (10th Cir. 1944) 140 F.2d 834, 836. All actions pending against it are abated and no new actions may be begun unless there is “some statutory authority [of the state of incorporation] for the prolongation of its life, even for litigation purposes.” Chicago Title and Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp. (1937) 302 U.S. 120, 125, 58 S.Ct. 125, 127, 82 L.Ed. 147; Oklahoma Gas Co. v. Oklahoma (1927) 273 U.S. 257, 259, 47 S.Ct. 391, 71 L.Ed. 634; Sedgwick v. Beasley (1949) 84 U.S.App.D.C. 325, 173 F.2d 918, 919; International Pulp Equip. Co. v. St. Regis Kraft Co. (D.C.Del.1944) 54 F.Supp. 745, 748. Most jurisdictions have, however, chosen to provide by legislation “for a partial continuation of the existence of a corporation after the termination of its corporate life, for the purpose of enforcing liabilities that had previously accrued against it. Statutes of this type are remedial and should be broadly and liberally construed.” United States v. Maryland & Virginia Milk Producers (D.D.C.1956) 145 F.Supp. 374, 375. Generally, these statutes fix a time limit -within which suit must be filed after dissolution. The reason for such limitation was stated in Bishop v. Schield Bantam Company (D.C.Iowa, 1968) 293 F.Supp. 94, 96: “There should be a definite point in time at which the existence of a corporation and the transaction of its business are terminated. To allow, as the plaintiff contends, the continued prosecution of lawsuits perverts the definiteness and orderly process of dissolution so as to produce a continuous dribble of business activity contrary to the intent of the winding up provisions of the statute.” See, also, American Optical Co. v. Philadelphia Electric Co. (D.C.Pa.1964 ) 228 F.Supp. 293, 295; and Hern and Alexander, Effect of Corporate Dissolution on Products Liability, 56 Cornell L.Rev. 865, 913 (1971). Whether there is such statutory “promulgation” of corporate life in a particular case, so as to permit “a partial continuation of the existence of a corporation” after dissolution for purposes of suit, is determinable by reference to the laws of the state of incorporation of the dissolved corporation; Rule 17(b), Federal Rules of Civil Procedure, to this effect is no more than a restatement of a iDrinciple already firmly established in federal law. Wright & Miller, Federal Practice and Procedure, vol. 6, p. 738 (1971). Thus, in Oklahoma Gas Co. v. Oklahoma, supra, (273 U.S. at 259-260, 47 S.Ct. at 392) the Court put it: “The matter [of the capacity of a dissolved corporation] is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the state which brought the corporation into being.” For this reason, assuming that the defendant RAO has been legally dissolved under the laws of Delaware, the right of the plaintiff to maintain this action against the defendant is controlled by the statute law of Delaware. There is some authority that, if a foreign corporation has qualified under the laws of another state, it, even though dissolved under the laws of the state of its incorporation, remains suable in the qualifying state until the laws of the qualifying state regulating withdrawal of a qualifying foreign corporation had been complied with. Trounstine v. Bauer, Pogue & Co. (2d Cir. 1944) 144 F.2d 379, cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621, and Dr. Hess & Clark, Inc. v. Metalsalts Corp. (D.C.N.J. 1954) 119 F.Supp. 427. In its supporting affidavit, the defendant RAC alleges that it has never qualified under the laws of Maryland, where this suit was begun and, if this information is correct (and we do not imply to the contrary), these cases are inapposite to this case. . . Cf., Oklahoma Gas Co. v. Oklahoma, supra, (273 U.S. at 261, 47 S.Ct. 391). . Cf., Bahen & Wright, Inc. v. C.I.R. (4th Cir. 1949) 176 F.2d 538; United States v. Cummins Distilleries Corporation (6th Cir. 1948) 166 F.2d 17. . The Delaware statute has been involved in many cases that have arisen in federal courts, both in Delaware and in other jurisdictions. Among these are Melrose Distillers v. United States (1959) 359 U.S. 271, 79 S.Ct. 763, 3 L.Ed.2d 800; Smith-Johnson Steamship Corporation v. United States, supra (231 F.Supp. 184) ; Ross v. Venezuelan-Ameriean Independent Oil Pro. Ass’n, Inc., supra (230 F.Supp. 701) ; Damon Alarm Corp. v. American District Telegraph Co. (D.C.N.Y.1969) 304 F.Supp. 83; Matthies v. Seymour Manufacturing Company (D.C.Conn.1958) 23 F.R.D. 64 (rev. on other grounds, (2d Cir.) 270 F.2d 365) ; Lyman v. Knickerbocker Theatre Co. (1925), 55 App.D.C. 323, 5 F.2d 538 (but see Sedgwick v. Beasley, supra, 173 F.2d at 919 on this .case) ; Trounstine v. Bauer, Pogue & Co. (D.C.N.Y.1942) 44 F.Supp. 767, aff. (2d Cir.) 144 F.2d 379, cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621; United States v. Safeway Stores, supra (140 F.2d 834) ; United States v. Line Material Co. (6th Cir. 1953) 202 F.2d 929; United States v. P. F. Collier & Son Corp. (7th Cir. 1953) 208 F.2d 936. In a number, the point in controversy was not whether the statutory time limit was absolute: that seemingly was assumed. The issue was whether the proceedings were of the character that fell within the class of actions which could be maintained within the three year period. Mel-rose Distillers v. United States, supra (359 U.S. at 273, 79 S.Ct. 763) ; United States v. United States Vanadium Corporation (10th Cir. 1956), 230 F.2d 646, cert. denied 351 U.S. 939, 76 S.Ct. 836, 100 L.Ed. 1466; United States v. Safeway Stores, supra (140 F.2d 834) ; United States v. Line Material Co., supra (202 F.2d 929) ; United States v. P. F. Collier & Son Corp., supra (208 F.2d 936). . See, to the same effect, Costen v. Pauline’s Sportswear, Inc. (9th Cir. 1968) 391 F.2d 81, 85 & n. 5; Sims v. Mercy Hospital of Monroe (6th.Cir. 1971) 451 F.2d 171, 173; Wright & Miller, Federal Practice and Procedure, vol. 5, at 683 (1969). . See Hern & Alexander, Effect of Corporate Dissolution on Products Liability, 56 Cornell L.Rev. 865 (1971). In Chadwick v. Air Reduction Company (D.C.Ohio 1965) 239 F.Supp. 247, 251, the right to maintain such a suit against the dissolved corporation was sustained but in Bishop v. Schield Bantam Company, supra (293 F.Supp. 94), the right was rejected. Both cases, however, were decided on the language of the individual State statutes. . See, 19 Am.Juris.2d, § 1648, but of., 16A, Fletcher on Corporations, § 8141 (rev.vol. 1962) : “Under certain circumstances a corporation may become liable for torts committed after its dissolution, as where a de facto existence continues the corporation so as to carry with it a liability then accruing. Ordinarily, however, a corporation has not even a de facto existence after the expiration of its charter, and where this is the case, such a liability does not arise. The remedy would be against the individuals committing the wrong.” See, also, Garzo v. Maid of the Mist Steamboat Co. (1952) 303 N.Y. 516, 104 N.E.2d 882, 887: “In addition, where, as here, a corporation carries on its affairs and exercises corporate powers as before, it is a de facto corporation as well, and ordinarily no one but the state may question its corporate existence.” . Whether application to the Chancery Court must be made within the three-year period after dissolution, as allowed under Section 278, see Levin v. Fisk Rubber Corp. (1943) 27 Del.Ch. 200, 33 A.2d 546, 548 (decided under an earlier version of the Statute). 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_direct1	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. The STATE OF UTAH and The Central Utah Water Conservancy District, Plaintiffs-Appellants, v. Cecil D. ANDRUS, Secretary of the United States Department of the Interior, and R. Keith Higginson, Commissioner, Bureau of Reclamation, U. S. Department of the Interior, Defendants-Appellees. No. 79-1697. United States Court of Appeals, Tenth Circuit. Submitted Sept. 14, 1980. Decided Dec. 1, 1980. Robert B. Hansen, Utah Atty. Gen., Dallin W. Jensen and Richard L. Dewsnup, Asst. Attys. Gen., Salt Lake City, Utah, for plaintiff-appellant State of Utah. Edward W. Clyde, Salt Lake City, Utah, for plaintiff-appellant The Central Utah Water Conservancy Dist. James W. Moorman, Asst. Atty. Gen., Washington, D. C., Ronald L. Rencher, U. S. Atty., Wallace T. Boyack, Asst. U. S. Atty., Salt Lake City, Utah, Jacques B. Gelin and Robert L. Klarquist, Dept, of Justice, Washington, D. C., for defendants-appellees. Before McWILLIAMS, DOYLE and McKAY, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. Nature of Proceeding This is an appeal from an adverse judgment against the appellants The State of Utah and The Central Utah Water Conservancy District. The appellants claim an interest in the waters of the Colorado River which they intend to put to beneficial use through the Central Utah Water Project. The action in the district court sought a declaratory judgment finding that the National Environmental Policy Act, or N.E.P.A., 42 U.S.C. § 4332(2)(C), does not require a comprehensive basin-wide environmental impact statement, here referred to as EIS, for the entire Colorado River Basin. The appellants alleged that the interpretation of the law by appellees so as to require such a basin-wide impact statement would delay and prevent the orderly and timely development of federally authorized water resource projects in the Colorado River Basin in Utah. Grant of Summary Judgment The appellees, the Secretary of the Interi- or, together with the Commissioner of the Bureau of Reclamation, filed a motion to dismiss the complaint for lack of standing and for failure to present a case or controversy. They asserted that Section 110 of P.L. 95-465 rendered the lawsuit moot, notwithstanding the requirements of N.E.P.A. In other words, Congress had passed, as part of an appropriations act for the Department of the Interior, a measure which provides that irrespective of N.E.P.A., such water resource projects or project features within the Colorado River Basin may proceed to completion if a site-specific environmental impact statement has been filed. The appellant, The State of Utah, responded with a motion for summary judgment asserting that the statutory provision contains an express declaration by Congress that such projects in Utah require only site-specific EIS’s, and that such projects may be fully completed without being subject to any comprehensive basin-wide EIS, whether during preparation or after completion. The Trial Court’s Judgment The trial judge granted the appellees’ motion to dismiss and took note of the fact that Congress had passed the statute referred to above which provided that construction of the Colorado River Water projects “shall proceed if a final environmental impact statement has been filed on such feature.” The judge went on to observe, “All parties agree, and this court finds that this enactment means that so long as a site-specific EIS has been filed for a project or a project feature, construction on that project or feature shall not be halted or delayed by the preparation of a basin-wide EIS.” The trial court continued that the plaintiffs in the action before the trial court concede that the only injury complained of was delay in construction. The plaintiffs moved for a summary judgment granting the declaratory relief prayed for in the complaint on the theory that P.L. 95-465 not only bars delay in construction, delays caused by preparation of the basin-wide EIS; it also bars the application of a completed basin-wide EIS to the Utah projects. The Secretary of Interior took the position that he should be allowed to continue with the basin-wide EIS so long as it did not affect construction. The Secretary also filed a motion to dismiss the complaint on the ground that H.R. 12,932, or P.L. 95 — 465, extinguished any injury to plaintiffs, and merely eliminated delays. Also, there was a lack of standing and failure to present a case or controversy for court determination. The trial court noted further the plaintiffs’ contention that they are suffering a present injury in that, on an on-going basis, they are making important decisions concerning the Central Utah Water Project that could be affected by a basin-wide EIS, which would not be completed before 1985. The trial court rejected this conclusion. It concluded that the act of Congress, H.R. 12,932, or P.L. 95 — 165, rendered moot any injury to the plaintiffs occurring from delays in construction resulting from the preparation of a comprehensive basin-wide EIS. The court added that the plaintiffs were seeking an advisory opinion, and that such is not permitted by way of declaratory relief absent disputed issues ripe for judicial determination. In concluding that there did not exist a viable issue for determination, the court said that the basin-wide EIS had not yet been funded or written, and that no injury could occur until after the earliest date for completion of the EIS, 1985. Accordingly, the issues in the case which had not been mooted by the passage of the act of Congress were not ripe for a decision. The court concluded that the anticipated injuries complained of by the plaintiffs may not occur at any time in the future; that Congress will decide the fate of the EIS when it takes up the matter of funding its preparation. Admittedly site-specific environmental impact statements have not been filed for many of the features of the Central Utah Project, and therefore, it would be premature and unnecessary for the court to decide any issues other than that decided above, namely, that the act of Congress to which reference is made removed any delay in construction attributable to a basin-wide EIS. The foregoing constituted the basis for the court ordered dismissal of the appellants’ complaint. It is well settled that an actual controversy is required in an action which arises under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1976). The express terms of this Act require that cases brought pursuant to it present an actual controversy, and not a mere abstract question. In Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed.617 (1937), the Supreme Court construed the then new Declaratory Judgment Act and settled the question of necessity for presentation of an actual controversy. In the opinion by Chief Justice Hughes, it was said: A “controversy” in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. * * * Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. The present case is fraught with problems. The problem of a basin-wide environmental impact statement has been effectively removed by the act of Congress referred to above. The projects are freed of the necessity for a basin-wide EIS. The preparation of such a statement is no longer a condition to completion of the project. For this court to render a decision in accordance with the appellants’ demand, it would be necessary to consider speculative or abstract evidence. Thus, the controversy would not be definite and concrete, nor would the ruling effect the legal relations of parties having adverse legal interests. The appellants argue that if preparation of a basin-wide EIS is allowed to proceed without determining its legal impact, the completed EIS could form the basis for a decision by appropriate agencies halting or delaying construction in violation of the intent of P.L. 95-465, and that they are making decisions right now concerning the Central Utah Project, and that these could be affected by a complete basin-wide EIS. They agree that a basin-wide EIS will not be completed before 1985. But all of this argument on the part of the appellants is supposition. They seek a judgment based upon assumptions and possibilities. They argue from the premise that Congress will in the future fund the Department of the Interior for a basin-wide EIS. That such a final basin-wide EIS might produce changes in the project in accordance with recommendations of the EIS, and that, therefore, they should have a judgment to the effect that a basin-wide EIS would not be binding on the Utah project features that are completed or are under construction following site-specific EIS’s. We must refuse to base our opinion on possible exemptions of the Utah project from any requirements of a basin-wide EIS. The question is whether the district court correctly held that the cause did not present a case or controversy sufficiently ripe for a declaratory judgment. It is our conclusion that the district court was correct in its decision and judgment, based upon the requirement of an actual controversy and the lack of such a controversy in this case. This particular deficiency in the proceedings renders the suit inappropriate for declaratory relief. The requirement is jurisdictional and, as noted above, the case is no different from any other kind of action. It must be dismissed. See 28 U.S.C. § 2201 (1976); U.S.Const., Art. III, § 1; Ash wander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936); Public Service of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); Norvell v. Sangre de Cristo Development Co., Inc., 519 F.2d 370 (10th Cir. 1975). The matter was summed up by the Supreme Court in O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The judgment of the district court should be and the same is hereby affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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". DAVIS v. UNITED STATES. No. 146. Circuit Court of Appeals, Tenth Circuit. Feb. 5, 1930. Orban Patterson, of Oklahoma City, Okl., for appellant. Roy St. Lewis, U. S. Atty., William Earl Wiles, Asst. U. S. Atty., and Herbert K. Hyde, Asst. U. S. Atty., all of Oklahoma City, Okl. Before LEWIS, PHILLIP'S, and McDERMOTT, Circuit Judges'. PER CURIAM. Defendant was convicted of a conspiracy to violate the Harrison Narcotic Act (26 USCA §§ 211, 691-707) and on four additional counts charging sales to a named purchaser “within Oklahoma County, in the Western District of Oklahoma.” . The principal error assigned is that the indictment does not sufficiently describe the place of the commission of the offense. What we have said in Turk v. United States (C. C. A.) 38 P. 630, this day decided, controls this case. It is further argued that the evidence is not sufficient to sustain the conviction on the fifth count. We cannot consider this, because there is no bill of exceptions. Instead there is a literal transcript of all the proceedings' at the trial. Tingley v. United States (10 C. C. A.) 34 F.(2d) 1; Caldwell v. United States (10 C. C. A.) 36 F.(2d) 738, decided October 16, 1929. Judgment is affirmed, and the mandate will issue forthwith. Affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party P. LORILLARD CO. v. FEDERAL TRADE COMMISSION. No. 6140. United States Court of Appeals Fourth Circuit. Argued Nov. 14, 1950. Decided Dec. 29, 1950. L. P. McLendon, Greensboro, N. C. (G. Neil Daniels, Greensboro, N. C., F. J. Daniels and T. L. Perkins, New York City, on brief), for petitioner. Joseph S. Wright, Asst. General Counsel, Federal Trade Commission, Washington, D. C. (W. T. Kelley, General Counsel; James W. Cassedy, Asst. General Counsel; John W. Carter, Jr., John R. Phillips, Jr., and A. B. Hobbes, Attorneys, Federal Trade Commission, all of Washington, D. C., on brief), for respondent. Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges. PÁRKER, Chief Judge. This is a petition'to set aside an order of the Federal Trade Commission which directed that the P. Lorillard Company cease and desist from making certain representations found to be false in the advertising of its tobacco products. The Commission has filed answer asking that its order be enforced. The company was ordered to cease and desist “from representing by any means directly or indirectly: “(1) That Beech-Nut cigarettes, or any other cigarette composed of substantially the same blend of tobaccos, or the smoke therefrom, will not harm or irritate the throat, or will provide any defense against throat irritation; or that the extra length of Beech-Nut cigarettes, or of any cigarette of substantially the same length, will filter out or eliminate the harmful properties in the smoke from such cigarettes or will cause the smoke from such cigarettes to be cooler than the smoke from cigarettes of standard length; provided, however, that nothing herein shall be construed to prohibit the respondent from representing that during the time the extra length of any such cigarette is being smoked the smoke therefrom will contain less irritating properties and will be cooler than the smoke from standard length cigarettes; “(2) That Sensation cigarettes, or any other cigarette composed of substantially the same blend of tobaccos, are made of extra-choice imported and domestic tobaccos, or are top quality cigarettes, or are made from the finest tobacco that can be bought; “(3) That Old Gold cigarettes or the smoke therefrom contains 'less nicotine, or less tars and resins, or is less irritating to the throat than the cigarettes or the smoke therefrom of any of the six other leading brands of cigarettes; or “(4) That Friends smoking tobacco, or any other smoking tobacco manufactured in substantially the same manner, is rum-cured, or that the process by which a rum flavoring is added to such tobacco enriches the tobacco or causes the smoke therefrom to be any less irritating to the throat or any cooler than if such rum flavoring were not added; or that the smoke from Friends smoking tobacco, or from any other smoking tobacco composed of substantially the same blend of tobaccos, will not irritate the mouth or throat of a smoker, or is cool, or is free from bite, burn, or harshness.” The company does not contend that the falsity of the representations referred to in paragraphs (1), (2) and (4) of the above order was not established by substantial evidence but does make that contention with respect to its advertising of Old Gold cigarettes referred to in paragraph (3). It contends, also, that the Commission was without power to make the order because of alleged procedural irregularities and that the order exceeds the authority and jurisdiction of the Commission and is fatally vague and ambiguous in its terms. Three questions are presented for our,consideration: (1) whether the Commission was without power to enter the order complained of because of the alleged procedural irregularities; (2) whether paragraph three of the order relating to Old Gold cigarettes is supported by substantial evidence; and (3) whether the order exceeds the power of the Commission or is otherwise invalid. 1. The Procedural Questions. The principal procedural question raised by the company is whether the Commission,, after approving a fact stipulation, could rescind its order to that effect and direct the taking of testimony in the case. The facts are that after the proceeding was instituted, counsel for the company and the Commission agreed upon a stipulation as to the facts with respect to most of the questions presented but provided for the taking of testimony as to two of them. The Commission approved the stipulation and set the case down for hearing. It later discovered that facts in the case which it regarded as highly important had not been stipulated, viz., facts relating to the nicotine, tar and resin content of Old Gold cigarettes as compared with other leading brands of cigarettes. Upon the refusal of the company to agree to ah amendment of the stipulation so as to cover this matter, counsel for the Commission moved that it withdraw its approval of the stipulation. This motion was allowed and the order of approval was rescinded and the case was reopened for the taking of additional testimony. The company made a motion to strike this order from the record which the Commission denied, setting forth at length its reasons for the action taken as follows: “In approving these stipulations, the Commission acted, under the erroneous impression, not in any way due to respondent, that with the exception of the two charges, mentioned the stipulation covered all other-material issues raised by the complaint. When, however, the matter came on for final consideration and the preparation by the Commission of its findings as to the facts and order to cease and desist, it was found that the facts stipulated afforded no basis for findings as to the facts and order to cease and desist with respect to charges in the complaint that Old Gold cigarettes contain tobaccos other than ‘prize crop’ tobaccos, that the tobaccos in Old Golds are not the finest money can buy, and that of the so-called seven leading brands of cigarettes Old Golds are not lowest in nicotine content or in throat-irritating tars and resins. “At the time of the issuance of the complaint the Commission had reason to believe that these charges were well founded, and there had been no intervening cause for any change in this belief. The Commission was further of the opinion that the charge concerning nicotine, tar, and resin content as set out in subparagraph (f) of paragraph four and controverted in sub-paragraph (8) of paragraph nine of the complaint, from the standpoint of the public interest, was perhaps the most important charge in the complaint. “In these circumstances, at the direction of the Commission that appropriate action be taken to provide for determination of these issues upon their merits, the Chief Counsel on March 17, 1945, filed a motion to withdraw approval of the stipulations and reopen the case. Thereafter, pursuant to a rule to show cause, hearing was had upon this motion, and on June 2, 1945, the Commission entered an order rescinding approval of the stipulations and reopening the case for the taking of testimony in support of and in opposition to the allegations of the complaint. “From time to time in proceedings before the Commission, after entering into stipulations as to the facts with the Commission or filing admission answers to complaints, respondents have requested that the stipulations be set aside or asked leave to withdraw the admission answers. The grounds for such requests have been various and have included matters such as mistake, failure to appreciate the significance of the act, misunderstanding, and others. It has been, and is, the policy of the Commission to grant such requests and thereafter proceed to a determination of the issues upon such facts as may be established in the course of the trial of the case. “The Commission having fully considered the present matter, including the mistake of fact which resulted in approval of the stipulations, and being of the opinion that there is no warrant for an abandonment of the aforesaid charges, which would result from granting respondent’s motion, that the public interest will be best served, and that the rights of respondent will be protected by an adjudication based upon a record established in the trial of the issues; * * sj< Little need be added to what the Commission itself has said with respect to the reopening of the case. Fact stipulations approved by the Commission certainly have no greater sanctity than pretrial stipulations approved by a judge; and no one would contend that a judge could not relieve against fact stipulations upon such a finding as was made by the Commission here. Fed. Rules Civ. Proc. rule 16, 28 U.S.C.A. It must not be forgotton that the Commission is not a private party, but a body charged with the protection of the public interest; and it is unthinkable that the public interest should be allowed to suffer as a result of inadvertence or mistake on the part of the Commission or its counsel where this can be avoided. As said by this court in National Labor Relations Board v. Baltimore Transit Co., 4 Cir., 140 F.2d 51, 55: “An administrative agency, charged with the protection of the public interest, is certainly not precluded from taking appropriate action to that end because of mistaken action on its part in the past. Cf. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 84 L.Ed. 656; Houghton v. Payne, 194 U.S. 88, 100, 24 S.Ct. 590, 48 L.Ed. 888. Nor can the principles of equitable estoppel be applied to deprive the public of the protection of a statute because of mistaken action or lack of action on the part of public officials. United States v. City & County of San Francisco, 310 U.S. 16, 32, 60 S.Ct. 749, 84 L.Ed. 1050; Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791; United States v. City of Greenville, 4 Cir., 118 F.2d 963, 966.” See also McComb v. Homeworkers’ Handicraft Corp., 4 Cir., 176 F.2d 633, 640, 641, and Wallace Corporation v. National Labor Relations Board, 4 Cir., 141 F.2d 87, 91. The case last cited is very much in point. In that case we said with regard to action by the National Labor Relations Board: “Settlements approved by the Board should ordinarily be observed and administrative orders should not be lightly disregarded (Cf. Matter of Simplicity Pattern Co., 16 N.L.R.B. 291) ; but these are guides for the exercise of discretion by the Board, not limitations upon its power. It is the duty of the Board to prevent unfair labor practices; and the fact that it may. have certified a union as a bargaining representative does not limit its power later to declare such union to be company dominated and order its disestablishment, if such course is seen to be proper in the light of subsequent developments.” If the Commission had sustained the objection to the reopening of the case, there was nothing in law or in reason to prevent its directing that another case be instituted to deal with the advertising of Old Gold cigarettes; and it certainly could furnish no ground of complaint that the matter was dealt with in a pending case rather than in a separate one, which would properly have been consolidated with the pending case had it been' instituted. The company complains, also, because the hearing of evidence was had before a different trial examiner from the one before whom the fact stipulations had been filed. There is nothing in this. The fact stipulations were excluded from further consideration when the case was reopened and the report was made by the examiner who presided at the hearings at which the evidence was taken and who saw and heard the witnesses. See N.L.R.B. v. Dixie Shirt Co., 4 Cir., 176 F.2d 969, 971, and cases there cited. 2. The Question of Substantial Evidence. While the company questions the scope of the order as embodied in paragraphs (1), (2) and (4), a matter which we shall discuss later, no question is raised as to the sufficiency of the evidence to support the findings upon which those paragraphs are based to the effect that the company had engaged in advertising as therein indicated which was false and misleading. Its argument as to the sufficiency of the evidence relates to the advertising of its Old Gold cigarettes. With respect to this, the Commission found that the company had advertised that these cigarettes and the smoke therefrom contain less nicotine than any of the six other leading brands of cigarettes and that the smoke contains less tars and resins and is less irritating to the throat than cigarettes of the other leading brands, and that the advertising was false, misleading and deceptive. The evidence amply supports this finding. Laboratory tests introduced in evidence show that the difference in content of nicotine, tars and resins of the different leading brands of cigarettes is insignificant in amount; and there is abundant testimony of medical experts that such difference as there is could result in no difference in the physiological effect upon the smoker. There is expert evidence, also, that the' slight difference in the nicotine, tar and resin content of cigarettes is not constant between different brands, but varies from place to place and from time to time, and that it is a practical impossibility for the manufacturer of cigarettes to determine or to remove or substantially reduce such content or to maintain constancy of such content in the finished cigarette. This testimony gives ample support to the Commission’s findings. The company introduced no evidence in the case but asks that we disregard the testimony of the expert witness who testified to the impossibility of determining, removing or substantially reducing the nicotine, tar or resin content of cigarettes, on the ground that he had had no experience in the manufacturing or blending of tobacco. The record shows, however, that this witness, Dr. McMurtry, is a plant physiologist with the U. S. Department of Agriculture in the Division of Tobacco Investigation and that he has been so employed since 1917. It would seem that his testimony with respect to a matter of this sort should have great weight; but, of course, the weight to be accorded it is a matter for the Commission, not for us, and the Commission believed it. Even if his testimony be disregarded, there remains the testimony of the experts to the effect that the difference in the nicotine, tar and resin content of cigarettes of the -leading brands is insignificant and not sufficient to make any difference in the physiological effect unon the smoker. This of itself is sufficient to condemn the advertising as false and misleading, since it is intended to appeal to those who are interested in the. physiological effect of the smoke of the cigarettes and who would be led by the advertising to believe that the smoke of the Old Gold cigarettes is less harmful to the smoker because containing appreciably less nicotine, tars and resins. The company relies upon the truth of the advertisements complained of, saying that they merely state what had been truthfully stated in an article in the Reader’s Digest. An examination of the advertisements, however, shows a perversion of the meaning of the Reader’s Digest article which does little credit to the company’s advertising department,- — a perversion which results in the use of the truth in such a way as to cause the reader to believe the exact opposite of what was intended by the writer of the article. A comparison of the advertisements with the article makes this very plain. The article, after referring to laboratory tests that had been made on cigarettes of the leading brands, says: “The laboratory’s general conclusion will be sad news for the advertising copy writers, but good news for the smoker, who need no longer worry as to which cigarette can most effectively nail down his coffin. For one nail is just about as good as another. Says the laboratory report: ‘The differences between brands are, practically speaking, small, and no single brand is so superior to its competitors as to justify its selection on the ground that it is less harmful.’ How small the variations are may be seen from the data tabulated on page 7.” The table referred to in the article was inserted for the express purpose of showing the insignificance of the difference in the nicotine and tar content of the smoke from the various brands of cigarettes. It appears therefrom that the Old Gold cigarettes examined in the test contained less nicotine, tars and resins than the others examined, although the difference, according to the uncontradicted expert evidence, was so sma-ll as to be entirely insignificant and utterly without meaning so far as effect upon the smoker is concerned. The company proceeded to advertise this difference as though it had received a citation for public service instead of a castigation from the Reader’s Digest. In the leading newspapers of the country and over the radio it advertised that the Reader’s Digest had had experiments conducted and had found that Old Gold cigarettes were lowest in nicotine and lowest in irritating tars and resins, just as though a substantial difference in such content had been found. The following advertisement may be taken as typical: “OLD GOLDS FOUND LOWEST IN NICOTINE OLD GOLDS FOUND LOWEST IN THROAT-IRRITATING TARS AND RESINS “See Impartial Test by Reader’s Digest July Issue. “See How Your Brand Compares with Old Gold. “Reader’s Digest assigned a scientific testing laboratory to find out about cigarettes. They tested seven leading cigarettes and Reader’s Digest published the results. “The cigarette whose smoke was lowest in nicotine was Old Gold. The cigarette with the least throat-irritating tars and resins was Old Gold. “On both these major counts Old. Gold was best among all seven cigarettes tested. Get July Reader’s Digest. Turn to Page 5. See what this highly respected magazine reports. “You’ll say, ‘From now on, my cigarette is Old Gold.’ Light one? Note the mild, interesting flavor. Easier on the throat? Sure: And more smoking pleasure: Yes, it’s the new Old Gold — finer yet, since ‘something new has been added’.” The fault with this advertising was not that it did not print all that the Reader’s Digest article said, but that it printed a small part thereof in such a way as to create an entirely false and misleading impression, not only as to what was said in the article, but also as to the quality of the company’s cigarettes. Almost anyone reading the advertisements or listening to the radio broadcasts would have gained the very definite impression that Old Gold cigarettes were less irritating to the throat and less harmful than other leading brands of cigarettes because they contained substantially less nicotine, tars and resins, and that the Reader’s Digest had established this fact in impartial laboratory tests; and few would have troubled to look up the Reader’s Digest to see what it really had said. The truth was exactly the opposite. There was no substantial difference in Old Gold cigarettes and the other leading brands with respect to their content of nicotine, tars and resins and this was what the Reader’s Digest article plainly said. The table whose meaning the advertisements distorted for the purpose of misleading and deceiving the public was intended to prove that there was no practical difference and did prove it when properly understood. To tell less than the whole truth is a well known method of deception; and he who deceives by resorting to such method cannot excuse the deception by relying upon the truthfulness per se of the partial truth by which it has been accomplished. In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have upon the general public. “The important criterion is the net impression which the advertisement is likely to make upon the general populace.” Charles of the Ritz Dist. Corp. v. Federal Trade Comm., 2 Cir., 143 F.2d 676, 679-680. As was well said by Judge Coxe in Florence Manufacturing Co. v. J. C. Dowd & Co., 2 Cir., 178 F. 73, 75, with reference to the law relating to trademarks: “The law is not made for the protection of experts, but for the public — that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearances and general impressions.” See also Federal Trade Comm. v. Standard Education Soc., 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141; Stanley Laboratories v. F. T. C., 9 Cir., 138 F.2d 388; Aronberg v. F. T. C., 7 Cir., 132 F.2d 165; Ford Motor Co. v. F. T. C., 6 Cir., 120 F.2d 175. We think that the Commission’s determination here was reasonable and amply supported by the evidence before it, and that its order forbidding the advertising as false and misleading was well within the limits of its discretion. Bristol-Myers Co. v. F. T. C., 4 Cir., 185 F.2d 58; General Motors Corp. v. F. T. C., 2 Cir., 114 F.2d 33, 36. 3. The Validity of the Order. Little need be said as to the validity of the order. The company contends that paragraphs (1), (2) and (4) exceed the powers of the Commission because they apply, not merely to the advertising of the tobacco products named therein, but also to any other cigarettes composed of substantially the same blend of tobaccos as Beech Nut or Sensation cigarettes or to any other smoking tobacco' manufactured in substantially the same manner as Friends smoking tobacco. We think that this contention is entirely without merit. Orders of the Commission have relation to the future, not to the past. American Chain & Cable Co. v. F. T. C., 4 Cir., 142 F.2d 909, 911; United Corp. v. F. T. C., 4 Cir., 110 F.2d 473, 475. And certainly it was proper in forbidding false advertising in the future, to make the order broad enough to forbid false and misleading advertising of which the company had been guilty even though it might be made with respect to cigarettes and tobacco sold under a different name. The order ought not be so limited in scope that the company could evade it by merely changing the name of its products. The Commission is entitled to make its order broad enough to prevent evasion. Hershey Chocolate Corp. v. F. T. C., 3 Cir., 112 F.2d 968, 971-972; Hill v. F. T. C., 5 Cir., 124 F.2d 104, 106; N. L. R. B. v. Express Publishing Co., 312 U.S. 426, 436-437, 61 S.Ct. 693, 700, 85 L.Ed. 930. As said in the case last cited, which dealt with a cease and desist order of the Labor Board: “Having found the acts which constitute the unfair labor practice the Board is free to restrain the practice and other like or related unlawful acts. * * * The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the employer in the past.” It is argued that paragraph (3) of the order is void (1) because the advertising as to Old Gold cigarettes is not false, (2) because the comparison with the six other leading brands may be true sometime in the future, and (3) because the comparison in the advertising is restricted to the six other leading brands. The falsity of the advertising and its relation to the Reader’s Digest article we have already sufficiently dealt with. As to the other objections, it is a sufficient answer to say that the order deals with the false advertising that was before the Commission; and the Commission properly framed its order to deal with the matter before it. If, in the future, advertising of the sort prohibited should become truthful because of a change in the character of the cigarettes to which it has reference, a very remote contingency, application can be made to the Commission for a revision of the order. It will be time enough to give consideration to that matter when the occasion for it arises. As to the prohibited comparison being limited to the six leading brands, there is nothing in this of which the company can complain. It was with these six leading brands that the comparison was made in the false and misleading advertisements, and the Commission properly observed the limits which they set in itself defining the advertising which was prohibited. For the reasons stated, the petition to set aside the order will be denied and the order will be enforced. Petition denied and order enforced. . In some other tests of the same leading brands of cigarettes, evidence of ■which was produced before the Corn-mission, Old Gold cigarettes were not the lowest in nicotine, tar or resin content. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_direct1	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. Basdeo BALKISSOON; Gloria Balkissoon, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 92-2078. United States Court of Appeals, Fourth Circuit. Argued May 7, 1993. Decided June 11, 1993. Brett Weiss, Olney, MD, argued, for petitioners-appellants. David Alan Shuster, Tax Div., U.S. Dept, of Justice, Washington, DC, argued (James A Bruton, Acting Asst. Atty. Gen., Gary R. Allen, Gilbert S. Rothenberg, Tax Div., U.S. Dept, of Justice, on brief), for respondent-appellee. Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges. OPINION ERVIN, Chief Judge: On May 5, 1986, the Commissioner of Internal Revenue (“Commissioner”) mailed by regular post a notice of deficiency to Basdeo and Gloria Balkissoon (“Taxpayers”) detailing a $33,268.58 deficiency in Taxpayers’ 1981 federal income tax paid. By way of the notice of deficiency, the Commissioner also assessed tax additions due to negligent failure to file pursuant to Internal Revenue Code (“IRC”) sections 6651(a)(1), 6653(a)(1), and 6653(a)(2), and interest on the deficiency pursuant to IRC section 6621(d). Taxpayers made a timely petition to the United States Tax Court for review of the deficiency and additions on July 21,1986. In two separate orders the tax court affirmed the Commissioner’s imposition of the deficiency and the additions. Taxpayers appeal directly to this court from the tax court pursuant to 26 U.S.C.A. § 7482. Finding no error in the orders of the tax court, we affirm. I Taxpayers filed a joint federal tax return for the 1981 tax year. The form was mailed on August 20, 1982, and was received by the Internal Revenue Service (“IRS”) on August 30, 1982. At no time prior to the receipt of the 1981 tax-year filing did the IRS receive a request for an extension beyond the April 15, 1982 deadline from Taxpayers. On their 1981 return, Taxpayers claimed substantial losses suffered by Satin Sewell Mining Program and Satin Sewell # 2 Mining Association, two partnerships in which Taxpayers had invested as limited partners. The Commissioner determined that these losses were impermissible deductions and, on May 5, 1986, mailed Taxpayers a notice of deficiency by regular post. On July 21,1986, Taxpayers made a timely petition to the tax court for a redetermination of the deficiency. Taxpayers also entered into a stipulation of settlement with the Commissioner. Under the terms of the stipulations, the parties agreed to be bound by the outcome of Zimmerman v. Commissioner, a factually identical case already before the tax court. The parties also agreed that the applicability of section 6621(c) additions to the tax liability would be determined by the outcome in Zimmerman, The tax court filed its opinion in Zimmerman on October 20, 1987. See Zimmerman v. Commissioner, No. 4661-85, 1987 WL 48830, 1987 Tax Ct. Memo LEXIS 526 (Oct. 20, 1987). The court held that the taxpayer in that case was not entitled to his claimed partnership losses based on the finding that the partnership was not “organized and operated with the primary objective of realizing an economic profit.” Zimmerman, 1987 WL 48830, 1987 Tax Ct. Memo LEXIS 526, at * 37-38. The Zimmerman court also found that the underpayment of tax was a tax-motivated transaction subject to the penalty provisions of section 6621(c). Id., 1987 WL 48830, 1987 Tax Ct. Memo LEXIS 526, at * 48-50. About five months after the tax court issued its opinion in Zimmerman, it ordered the parties in this case to submit a computation and stipulated decision or alternatively to demonstrate just cause why a decision should not be entered. Taxpayers responded that the taxpayer in Zimmerman had failed to put forth a good faith defense, and that they could establish, by expert testimony, that the losses were deductible. The tax court rejected Taxpayers’ contentions, mainly based on a determination that Taxpayers’ expert testimony would be irrelevant to the substantiation of deductible losses. Therefore, the tax court concluded that the parties were bound by the stipulations. The tax court did rule, however, that Taxpayers were not subject to section 6653(a)(1) and 6653(a)(2) additions. The tax court then restored the case to the general docket for trial to resolve any' remaining issues. At their December 13, 1991 trial, Taxpayers raised the jurisdictional issue of the inadequacy of their notice of deficiency. Taxpayers pointed to IRC section 6212(a), which “authorize[s the Commissioner] to send notice of ... deficiency to the taxpayer by certified mail or registered mail.” 26 U.S.C.A. § 6212(a) (West Supp.1989). Taxpayers testified that they had received the notice of deficiency by ordinary mail sometime in May 1986. The Commissioner was unable to prove' certified or registered delivery, leading Taxpayers to contend that the notice was invalid and could not serve as the basis for the assessment of a deficiency and penalties. The tax court held that the Commissioner was not required to send notices of deficiency by registered or certified mail, and therefore upheld the determination of deficiency. As to the penalties, the tax court held that the section 6621(c) adjustments were controlled by the stipulations and that these adjustments should be made on the basis of the court’s prior opinion in Zimmerman. The tax court reiterated its prior conclusion that Taxpayers were not subject to section 6653(a)(1) and (2) additions. Finally, the court held that the addition to tax pursuant to section 6651(a)(1) was appropriate. Taxpayers appeal the adequacy of the notice of deficiency, the enforceability of the stipulations, and the assessment of additions pursuant to sections 6621(c) and 6651(a)(1). II This appeal presents three issues: (1) whether a notice of deficiency actually received by Taxpayers without prejudicial delay is valid despite the fact that it was not sent by certified or registered mail; (2) whether the tax court abused its discretion in refusing to relieve Taxpayers from their stipulations binding them to certain issues in a related tax court ease; and (3) whether certain additions and interest charges were properly assessed against Taxpayers. The application of the notice requirements of IRC section 6212(a) is a question of law which we review de novo. See Scar v. Commissioner, 814 F.2d 1363, 1366 (9th Cir. 1987). Whether a stipulation entered into by parties to a tax case should be set aside is a matter within the sound discretion of the tax court, which we review for an abuse of that discretion. See Marshall v. Emersons, Ltd., 593 F.2d 565, 568 (4th Cir.1979). The additions and interest charges not found to be governed by the stipulations are proper unless their assessment represents an abuse of discretion. A. IRC section 6212(a) provides that “[i]f the Secretary determines that there is a deficiency in respect of any tax ..., he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.” 26 U.S.C.A. § 6212(a) (West Supp.1989). The issue in this case centers on whether the section 6212 authorization is mandatory or permissive. Taxpayers suggest that section 6212(a) mandates the use of registered or certified mail. The Commissioner contends that the statute’s language provides a safe harbor — a method of notice by which the Commissioner can be guaranteed that the limitations period for filing a petition of redetermination begins to run. If it uses a method of delivery for notices of deficiency other than registered or certified mail, the Commissioner contends, it gains no benefit from the section 6212(a) safe harbor and must prove that the taxpayer actually received the notice before it can benefit from the expiration of the period for filing a petition of redetermination. Taxpayers rely on our decision in United States v. Ball, 326 F.2d 898 (4th Cir.1964), to support their position. In Ball there was some question as to whether the taxpayer, who had been out of the country since filing the tax form from which the deficiency in question derived, had ever received actual notice of the deficiency. Addressing the sufficiency of the notice, we said that notice under § 6212(a) must be by registered mail.... The failure to send notice by registered mail in compliance with § 6212(a) is fatal to a jeopardy assessment, during the period that § 6212(a) permitted only notice by registered mail. Id. at 901. In the context of determining the validity of a tax lien against a taxpayer who possibly had not received actual notice of the deficiency, we stressed the need for strict compliance with section 6212(a)’s notice requirements. Although the language used in Ball seems to mandate the use of registered mail, the holding is limited to the situation in which the Commissioner does not have evidence of actual notice and must rely on the safe harbor of section 6212(a) to establish compliance with the IRC’s notice requirements. Section 6212(a) does not require that the taxpayer actually receive the notice of deficiency. Instead, the Commissioner must show only that it sent a notice by registered or certified mail to the taxpayer’s' last known address. Jones v. United States, 889 F.2d 1448, 1450 (5th Cir.1989). As the Fifth Circuit described it, [t]he statutory scheme ... provides a method of notification which insures that the vast majority of taxpayers will be informed that a tax deficiency has been determined against them without imposing on the Commissioner the virtually impossible task of proving that the notice actually has been received by the taxpayer. Id. If the taxpayer actually does receive notice of deficiency by some method of delivery, the Commissioner’s failure to comply with the authorization in section 6212(a) inviting the use of registered or certified mail proves to be a technical, but harmless violation. The circuits that have addressed this issue directly all have reached this conclusion, holding in essence, that “a notice of deficiency that is actually received without delay prejudicial to the taxpayer’s ability to petition the Tax Court is sufficient to toll the statute of limitations as of the date of mailing.” Scheldt v. Commissioner, 967 F.2d 1448, 1450-51 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 81.1, 121 L.Ed.2d 684 (1992); see also Mulvania v. Commissioner, 769 F.2d 1376, 1378 (9th Cir.1985) (holding that “a notice of deficiency actually, physically received by a taxpayer is valid under § 6212(a) if it is received in sufficient time to permit the taxpayer, without prejudice, to file a petition to the Tax Court even though the notice is erroneously addressed’’); Pugsley v. Commissioner, 749 F.2d 691, 693 (11th Cir.1985) (holding that technical violation of not sending notice to “last known address” was not prejudicial because taxpayer received actual notice of deficiency with ample time remaining to file a petition); Clodfelter v. Commissioner, 527 F.2d 754, 756 (9th Cir. 1975) (holding that section 6212(a) deals only with those instances in which actual notice was not given or cannot be proved), cert. denied, 425 U.S. 979, 96 S.Ct. 2184, 48 L.Ed.2d 805 (1976); Berger v. Commissioner, 404 F.2d 668, 673 (3d Cir.1968) (holding that section 6212(a) authorization that notice of deficiency be sent by registered or certified mail does not forbid any other method of notice), cert. denied, 395 U.S. 905, 89 S.Ct. 1744, 23 L.Ed.2d 218 (1969); Boren v. Riddell, 241 F.2d 670, 672-74 (9th Cir.1957) (holding that essential purpose of statute was accomplished when taxpayer got actual notice in sufficient time to petition tax court despite technical violation of not using registered mail); cf. Powell v. Commissioner, 958 F.2d 53, 56 (4th Cir.) (invoking section 6212(a) safe harbor in situation in which the notice was admittedly not delivered to taxpayers), cert. denied, — U.S.-, 113 S.Ct. 440, 121 L.Ed.2d 369 (1992). In this case Taxpayers readily admit that they received the notice of deficiency and were able to petition the tax court for rede-termination. Therefore, any prejudice to them associated with the failure of the Commissioner to send the notice by registered or certified mail is inconsequential. Following the lead of the other circuits that have addressed the issue, we identify section 6212(a) as a safe harbor to be relied upon only in those situations in which the taxpayer did not receive actual notice. Such is not the case for Taxpayers; therefore, their notice of deficiency was valid upon timely receipt. B. Next, Taxpayers challenge the enforceability of the stipulations in which they entered with the Commissioner to control the outcome of their case. Tax Court Rule 91(e) states: A stipulation shall be treated, to the extent of its terms, as a conclusive admission by the parties to the stipulation, unless otherwise permitted by the Court or agreed upon by those parties. The Court will not permit a party to a stipulation to qualify, change, or contradict' a stipulation in whole or in part, except that it may do so where justice requires. Tax Ct.R. 91(e). The tax court’s decision whether to relieve a party from a previous stipulation should “not ordinarily be interfered with, except where a manifest abuse of discretion is disclosed.” Brast v. Winding Gulf Colliery Co., 94 F.2d 179, 181 (4th Cir. 1938). In this case Taxpayers demonstrate disapproval of the way Zimmerman defended his ease and now seek to be released from the outcome of the Zimmerman case. Taxpayers argue that the parties were mutually mistaken about Zimmerman’s willingness to defend his case and therefore should be relieved of their duty to comply with the stipulations. Taxpayers’ contentions are merit-less. They are unhappy with the fact that Zimmerman lost and that they are bound by that outcome. They cannot make out any conceivable theory to support mutual mistake, as the Commissioner did not believe at any time that Zimmerman or the other partners had a defense to the nonpayment of taxes based on spurious partnership loss deductions. Therefore, we conclude that the tax court did not abuse its discretion by binding Taxpayers under the stipulations. C. Finally, Taxpayers seek to avoid the imposition of additions and interest. Once the Commissioner makes an assessment, the assessment is.presumed correct and the taxpayer bears the burden of establishing the absence of the necessary elements forming the basis of the assessment. Business Ventures Internati v. Olive, 893 F.2d 641, 646 (3d Cir.1990); Hall v. Commissioner, 729 F.2d 632, 635 (9th Cir.1984). Therefore, the Commissioner need only establish, the basis for the addition, and it did so in its notice of deficiency. Without presenting evidence to the contrary, Taxpayers cannot avoid the conclusion that their failure to pay was in violation of the IRC and subject to penalty. Taxpayers suggest no reason why the imposition of the additions was in error. They merely assert that the tax court did not discuss the additions specifically in its order and that the absence of specific reference precludes their assessment. The absence of specific reference actually appears to mean that the additions were uncontested before the tax court. See supra note 5. Taxpayers have demonstrated no substantive reason why they should be allowed to avoid the additions. Ill Taxpayers have failed to establish the inadequacy of their notice of deficiency, the unenforceability of the stipulations, or the invalidity of the additions to tax made by the Commissioner. Therefore, the orders of the tax court are AFFIRMED. . The sections of the IRC authorizing the applicable tax additions provide, in pertinent parts, that [i]n case of failure ... to file any return required ... on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate.... 26 U.S.C.A. § 6651(a)(1) (West Supp.1989). Additions also are authorized under sections 6653(a)(1) and 6653(a)(2): If any part of any underpayment ... of tax required to be shown on a return is due to negligence (or disregard of rules or regulations), there shall be added to the tax an amount equal to 5 percent of the underpayment.... There shall not be taken into account under this subsection any portion of an underpayment attributable to fraud with respect to which a penalty is imposed under subsection (b). Id. §§ 6653(a)(1) & (2). The Commissioner adds interest to a taxpayer’s taxes due when the taxpayer makes a substantial underpayment and that underpayment is attributable to tax-motivated transactions. Id. § 6621(c). .The tax court issued two orders, one on November 16, 1990 by Judge John J. Pajak reviewing the assessment of additions and interest pursuant to the parties’ stipulations and one on June 8, 1992 by Judge Jules G. Korner, III affirming the adequacy of the Taxpayers' notice of deficiency and the determination of the deficiency. . Section 7482 provides that [t]he United States Court of Appeals (other than the United States Court of Appeals for the Federal Circuit) shall have exclusive jurisdiction to review the decisions of the Tax Court ... in the same manner and'to the same extent as decisions of the district courts in civil actions tried without a jury.... 26 U.S.C.A. § 7482(a)(1) (West Supp.1989). . If a taxpayer chooses to challenge a deficiency, she must file a petition with the tax court for a redetermination of the deficiency within 90 days after the notice of deficiency is mailed. 26 U.S.C.A. § 6213(a) (West Supp.1989). . Taxpayers failed to raise objection to the section 6651(a)(1) addition in their Second (and final) Amended Petition. The tax court concluded that the Taxpayers had abandoned their challenge to the section 6651(a)(1) addition. . Under the version of section 6212(a) applicable at the time Ball was decided, the Commissioner was authorized to use only registered mail. Congress later amended the statute to include certified mail as well. Pub.L. No. 85-866, § 89(b), 72 Stat. 1661, 1665 (1958) (codified as amended at 26 U.S.C.A. § 6212(a) (West Supp.1989)). . Taxpayers contend that, through testimony and an expert report, they can establish the validity of the contested deduction. The tax court carefully reviewed the nature and content of the evidence and determined that it either was repetitive of that presented in the Zimmerman case or irrelevant. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. CLARK, James, Appellant, v. COMMONWEALTH OF PENNSYLVANIA, Zimmerman, Charles and the Attorney General of the State of Pennsylvania, Zimmerman, Leroy and District Attorney of Philadelphia. No. 89-1499. United States Court of Appeals, Third Circuit. Argued Oct. 30, 1989. Decided Dec. 27, 1989. Rehearing and Rehearing In Banc Denied Jan. 25, 1990. David McColgin (argued) Defender Ass’n of Philadelphia Federal Courts Div., Philadelphia, Pa., for appellant. Elizabeth J. Chambers (argued), Chief, Federal Litigation, Gaele McLaughlin Bart-hold, Deputy Dist. Atty., William G. Chadwick, Jr., First Asst. Dist. Atty., and Ronald D. Castille, Dist. Atty., Dist. Atty.’s Office, Philadelphia, Pa., for appellees. Before GIBBONS, Chief Judge, MANSMANN, Circuit Judge, and GERRY, District Judge. Honorable John F. Gerry of the United States District Court for the District of New Jersey, sitting by designation. OPINION OF THE COURT MANSMANN, Circuit Judge. James Clark, a state prisoner presently incarcerated at Graterford State Prison, filed three separate petitions seeking federal habeas corpus relief. Two of the petitions, concerning 1974 convictions for which Clark has completed serving his sentences, fail to meet the threshold jurisdictional requirements of 28 U.S.C. §§ 2241(c), 2254(a) (1948) that a petitioner be in custody for the allegedly defective conviction presented for scrutiny. Our review is thus limited to the third petition filed by Clark regarding a 1979 conviction for which he remains incarcerated. The essence of this petition is Clark’s allegation that the judge who sentenced him for a 1979 conviction wrongly took into consideration the two previous convictions. These convictions were obtained in criminal court at a time when Clark was a juvenile, yet Clark was not afforded a hearing concerning his minor status and how his age should impact upon the criminal proceedings pending against him. Clark asserts, inter alia, that the failure to conduct such a hearing deprived him of his constitutional guarantee of due process. Although the district court held that the alleged constitutional deficiencies were not present and that Clark’s due process rights were protected during the 1974 judicial proceedings, we disagree. We conclude instead that the 1974 sentencing judge erred in not ascertaining Clark’s juvenile status in light of the evidence of record. This failure denied Clark the important procedural safeguards provided to juveniles under Pennsylvania law. Thus, under the mandate of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the matter must be remanded for resentencing of the 1979 conviction with instruction that the 1974 convictions, obtained in violation of Clark’s constitutional right to due process, not be considered in the imposition of the sentence. I. The historical facts surrounding the crimes committed need not be outlined in detail; rather, the post-arrest events command our attention. On separate dates in November 1973 criminal complaints were lodged against Clark for two incidents of sexual assault. On the first offense, Clark entered a no contest plea to attempted rape and was sentenced to 3 to 23 months in prison. After a bench trial on the second offense, Clark was found guilty of felonious assault. A sentence of IIV2 to 23 months imprisonment was ordered. Clark took no direct appeal from these convictions. He completed serving both sentences in 1978. In 1979 a jury found Clark guilty of rape, indecent assault, unlawful restraint, aggravated assault and possessing an instrument of crime. On the day that Clark’s post-trial motions were scheduled for argument, he escaped. Under the dictates of the Pennsylvania fugitive forfeiture rule, the pending post-trial motions were then dismissed. Upon recapture Clark was sentenced to serve 10 to 20 years for rape and to a consecutive 2 to 5 year sentence for felonious restraint. In imposing sentence, the judge took into consideration the two 1974 convictions whose sentences Clark had just finished serving. The Pennsylvania Superi- or Court affirmed the judgment of sentence. Commonwealth v. Clark, 300 Pa.Super. 315, 446 A.2d 633 (1982). The Pennsylvania Supreme Court denied review. Meanwhile, in October of 1980, Clark filed a petition under the then-applicable Pennsylvania Post-Conviction Hearing Act (“PCHA”), 42 Pa.Cons.Stat.Ann. § 9541 et seq. (Purdon 1982), challenging the jurisdiction of the trial court over his 1973 violations. The petition was later amended to allege ineffective assistance of counsel. Clark's argument against jurisdiction was that he was only 17 at the time the crimes were committed and that Pennsylvania law entitled him to a juvenile court hearing to determine whether he should have been treated as a juvenile offender or tried as an adult. See 42 Pa.Cons.Stat.Ann. § 6322 (Purdon 1978). The ineffectiveness claim was related. Clark averred that representation was inadequate because his trial counsel failed to ascertain Clark’s true age and was derelict in not bringing Clark’s juvenile status to the attention of the court; in sum, an allegation that counsel failed to question the trial court’s jurisdiction. A post-conviction hearing was held, at which Clark declined to present testimony from his 1973 trial counsel and, instead, “stood” on the record. The PCHA court found as a fact that both the trial court and counsel were unaware of Clark’s actual age. Since this awareness is a requirement before a juvenile certification hearing is required under the Pennsylvania statute, the post-conviction petition was denied. The Superi- or Court affirmed the denial of collateral relief. Commonwealth v. Clark, 344 Pa.Super. 620, 495 A.2d 610 (1985). Clark’s request for allowance of appeal to the Pennsylvania Supreme Court was denied. On October 28, 1985, seven years after he completed serving his sentences for the 1974 offenses, Clark filed two federal habe-as petitions challenging those convictions. In 1986, he filed a third petition asserting that the 1980 sentence ordered for his 1979 conviction was unconstitutionally imposed as it was based upon infirmities in the two 1974 convictions. He also raised the argument that his counsel was ineffective in the 1979 case for failure to request reinstatement of his post-trial motions after his recapture and for not raising the illegality of the 1974 adult convictions. The three petitions were consolidated. On August 24, 1987, a United States magistrate recommended that the petitions be provisionally granted and the matter remanded for the state court to hold a certification hearing on the two 1974 convictions. Then, if the court of common pleas determined that the waiver of juvenile court jurisdiction was improper, the magistrate advised that the 1974 convictions should be vacated and Clark resen-tenced without consideration of these illegally obtained convictions. Both the government and Clark filed objections to the magistrate’s report. On May 31,1989, the district court rejected the magistrate’s recommendation. The two petitions concerning the 1974 convictions were denied on jurisdictional grounds. As to the third petition concerning the 1980 sentence, the district court first determined that the statutory exhaustion of state remedies requirement was satisfied with regard to the issue of the application of the Pennsylvania fugitive forfeiture rule. The district court did not address the exhaustion question posed concerning the due process claim. Next, regarding waiver, the district court decided that the state court dismissal of the then-pending post-trial motions occasioned by Clark’s flight from the jurisdiction, constituting a procedural default under the Pennsylvania fugitive forfeiture rule, did not preclude federal review of Clark’s ha-beas claims. Having overcome these procedural obstacles, the district court proceeded to the merits of the remaining petition. Despite its conclusion that under United States v. Tucker, 404 U.S. at 448, 92 S.Ct. at 592, the 1974 convictions were reviewable, the district court decided that Clark’s substantive allegations were meritless. Specifically, the district court held that the failure to hold a juvenile certification hearing in the 1974 cases did not violate Pennsylvania law nor did it deny Clark due process. As to the ineffectiveness claim, the district court found that trial counsel’s failure to ascertain his client’s actual age did not constitute constitutionally inadequate representation because Clark failed to show both prongs of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) test — incompetence of counsel and prejudice resulting from an allegedly deficient performance. Finally, the district court rejected the claims that counsel was ineffective at the sentencing of the 1979 case. The district court found probable cause to appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253 and exercise plenary review over the legal questions presented. II. As is often the case in habeas petitions presented for federal review, this matter poses questions of jurisdiction, exhaustion and procedural default. Here these issues are not dispositive, nonetheless, are perplexing enough to warrant some discussion. A. Jurisdiction In light of the Supreme Court’s recent decision in Maleng v. Cook, — U.S. -, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), Clark now concedes that he is no longer in custody as a result of the 1974 convictions and, accordingly, admits that the district court does not have jurisdiction to consider the merits of those petitions. The reviewa-bility of those convictions nonetheless remains before us, as discussed infra, because of their collateral enhancement consequences on the 1980 sentence. B. Exhaustion First, we address the exhaustion question summarily as it arises in the context of the fugitive forfeiture rule. The district court agreed with the magistrate that the impact of the application of the Pennsylvania fugitive forfeiture rule, occasioning a state procedural default, was not an issue subject to the exhaustion requirement. The district court reasoned that because Clark had not raised the issue of the applicability of the rule as an independent basis seeking relief but, rather, invoked it only as a response to the government’s assertion that he committed a procedural default which bars habeas relief, he need not have exhausted this by direct review. The government did not cross-appeal concerning the district court’s determination and we are satisfied that the district court’s conclusion in this regard was correct. The government contended, however, at oral argument before us, that Clark’s request for relief on due process grounds, occasioned by the failure to provide him with a certification hearing to determine his juvenile status, was not exhausted. According to the government, this claim was raised in the state courts only as a jurisdictional issue, i.e., because of Clark’s juvenile status, the court of common pleas did not have jurisdiction over him. Although the district court did not address whether Clark exhausted the claim, we find that this question poses a significant problem requiring discussion in some detail. That 28 U.S.C. § 2254(b) embodies the requirement that state remedies must be completely exhausted before federal courts will grant habeas corpus relief needs no further elaboration. But how this requirement is satisfied is not so readily ascertainable. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), instructs us to question if the federal claim has been fairly presented to the state courts. In determining what constitutes a fair presentation, we must inquire whether the claim presented to the state court is the substantial equivalent of that presented in the federal habeas corpus petition. Id. at 278, 92 S.Ct. at 513. This requires “ ‘a searching scrutiny by the federal habeas court of the points that were raised in the state tribunals, in order to ensure that the state system was granted a fair opportunity to confront arguments that are propounded to the federal habeas courts.’ ” Bisaccia v. Attorney General of State of New Jersey, 623 F.2d 307, 310, (3rd Civ.) cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980) quoting, Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (in banc). In Duttry v. Petsock, 878 F.2d 123 (3d Cir.1989), we reiterated the necessity for the district court to review the state court records relevant to exhaustion to determine if that jurisdictional requirement is satisfied. If the district court has been remiss in this obligation, the matter must be remanded so that the search be accomplished. See also Ross v. Petsock, 868 F.2d 639, 643 (3d Cir.1989), Gibbons, C.J., dissenting, (disagreeing with majority’s, albeit disapproving, excusal of district court’s failure to comb state court record). It is problematic that the record here does not show whether the district court reviewed the state court record for purposes of determining the due process exhaustion issue. Given the age of this matter, we are, however, very reluctant to remand on this limited question since such an action would cause further delay and potentially yield yet another appeal. Nonetheless, we will not overstep our review boundaries; we are not the proper tribunal to undertake an independent search of the record. Instead, we seek alternate recourse to resolve the exhaustion issue and find an avenue provided by our recent decision in Peoples v. Fulcomer, 882 F.2d 828 (3d Cir.1989). In Peoples, a case revisited by us on remand from the Supreme Court, we observed that a petitioner’s claim can be considered exhausted when it is clear that it would be procedurally barred under Pennsylvania law. Id. at 830. We took our lead from the Supreme Court’s language in its review of the matter in Castille v. Peoples, — U.S. -, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). There the Court announced that the customary bar to federal review caused by failure of presentation of a particular claim to the state courts may not be present if the petitioner’s claim would now be procedurally barred under state law. Id. 109 S.Ct. at 1060. See also Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (state collateral relief not available for non-exhausted habeas claim, thus, exhaustion satisfied under 28 U.S.C. § 2254(b)). We then turned, as we do now, to the newly revised Pennsylvania statute governing such collateral actions. Pennsylvania’s prior Post-Conviction Hearing Act had been modified in part, repealed in part, and renamed the Post-Conviction Relief Act, 42 Pa.Cons.Stat.Ann. § 9541 et seq. (Purdon Supp.l989)(“PCRA”). We viewed the PCRA as incorporating a preference that Pennsylvania courts confront post-conviction challenges. Peoples, 882 F.2d at 832, n. 2. With this preference in mind and noting dismay for the necessary conjecture, we trace the probable path Clark’s current claim would travel in the current Pennsylvania post-conviction system. Under the PCRA, Clark must plead and prove a number of matters relevant to the alleged due process violation before establishing eligibility for relief. Under 42 Pa.Cons.Stat. Ann. § 9543(a) Clark must demonstrate by a preponderance of the evidence that he is currently serving a sentence for conviction of the crime which, in this case, arose from a violation of the Constitution of the United States which would require the grant of federal habeas relief. § 9543(a)(i)(l), (a)(2)(v). Next, Clark must show, under § 9543(a)(3): (3) That the allegation of error has not been previously litigated and one of the following applies: (i) The allegation of error has not been waived. (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual. (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief. 42 Pa.Const.Stat.Ann. § 9543(a)(3). A claim has been previously litigated if: (1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal; (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.Cons.Stat.Ann. § 9544(a)(1). The direct language of § 9544’s definition of “previously litigated” belies the difficulty of applying its guidelines to Clark. Also, the irony of the requisite to examine the state court proceedings to ascertain whether Clark’s claim has been previously litigated or waived is apparent. This is the exact activity spurned by us in announcing our reluctance to usurp the district court’s role in finding exhaustion. Fortunately, we need not resolve the paradox since it is our opinion that the overriding exception barring entitlement to relief under the PCRA, prejudice to the Commonwealth, exists. 42 Pa.Cons.Stat.Ann. § 9543(b) reads: (b) Exception. — Even if the petitioner meets the requirements of subsection (a), the petition shall be dismissed if it appears that, because of delay in filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner. This subsection does not apply if the petitioner shows that the petition is based on grounds of which the petitioner could not have had knowledge by the exercise of reasonable diligence before the delay became prejudicial to the Commonwealth. Here, both the delay, 16 years since the alleged due process violation, and the prejudice to the Commonwealth are present. The delay is self-evident and the prejudice to the Commonwealth is compelling. Although our issue is confined to the impact of the 1973 proceedings upon the 1980 sentence, the facts and circumstances surrounding the 1973 proceedings are disposi-tive of whether Clark’s due process rights were violated. Given the death of the trial judge involved and the destruction of the relevant stenographic notes, to now defend against this issue in a collateral proceeding would be virtually impossible. Nor is this an instance where Clark did not have knowledge of the relevant facts before the delay became prejudicial. Granted he did not know precisely that the 1980 sentencing court would consider his earlier convictions, yet he knew at all times of the crucial underlying fact of his status as a juvenile at the time of the proceeding and the court and his counsel’s failure to become aware of this factor. It is our opinion that the Pennsylvania court would not entertain Clark’s petition at this late date. Indeed, nine years earlier, the delay in filing his 1980 petition had been previously referred to and considered detrimental to the success of his claim. To return to the Pennsylvania courts would thus be a futile exercise allowing excusal of the exhaustion requirement as per Castille v. Peoples, 109 S.Ct. at 1060 and Peoples v. Fulcomer, 882 F.2d at 830. C. Procedural Default The government also did not specifically cross-appeal the district court’s determination that the Pennsylvania fugitive forfeiture rule did not constitute a procedural default of Clark’s federal habeas claims. In a footnote the government contends that review of the issue is nonetheless proper since we may affirm the district court on any basis. Because the district court’s conclusion on this issue, although correct, requires clarification, we discuss it briefly. Before the district court the government argued that Clark’s escape after his 1979 conviction constituted a procedural default which bars review of the issues raised. The chronology of events is pertinent: after Clark was convicted in 1979 of rape, robbery, unlawful restraint and possession of an instrument of a crime, he timely filed post-trial motions. On September 26, 1979, the day scheduled for oral argument of these motions, Clark escaped. The post-trial motions were then dismissed, we assume by motion of the government under Rule 1972. Clark was recaptured on July 25, 1980 and sentenced for the 1979 offenses on September 17, 1980. The Superior Court affirmed the judgment of his sentence on June 4, 1982 and the Supreme Court denied allocatur. Clark has remained in custody since his apprehension. Whether Clark’s escape equates to a procedural default foreclosing federal habeas review is governed by whether our opinion in Feigley v. Fulcomer, 833 F.2d 29 (3d Cir.1987) controls. In Feigley, we opined that an escape constitutes a knowing decision by the prisoner that he will not abide by the outcome of that court’s lawful processes. Thus, we reasoned that it was unlikely that such a prisoner could ever be able to show “cause,” see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for procedural default. Feigley, 833 F.2d at 31. We thereby decided that by escaping during the pendency of his state post-conviction petitions, Fiegley waived his right to assert this claim in his federal habeas petition. The district court here held that Feigley did not apply. We agree, although on an alternate basis. We are in accord with the district court that Rule 1972’s facial language, permitting any party to move to continue generally or to quash a matter because an appellant is a fugitive, provides little or no guidance as to dismissal of claims arising after recapture. Although the district court added that the case law does not distinguish between claims arising before or after recapture, this is because the rule simply does not apply to motions arising after recapture. Clark was not sentenced until he was once again apprehended. His claims for federal habeas relief, unlike those in Feigley, are based upon events which arose at sentencing following his apprehension and do not directly concern his original post-trial motions which were forfeited when he escaped. Thus, although we agree with the district court, first, that the Pennsylvania rule does not speak in unmistakable terms and, second, that the Pennsylvania cases construing the law are not consistent, we find that it was unnecessary to confront the procedural default argument by employing the fugitive forfeiture rule when its terms were simply not operational to the claim before the 1980 sentencing court. III. We turn at last to the merits of the petition. The district court made a positive determination as to reviewability of the 1974 convictions. Although these matters, lacking the “in custody” requirement of 28 U.S.C. § 2254(a), were beyond the district court’s direct jurisdictional constraints, under the doctrine of the United States v. Tucker, 404 U.S. at 447, 92 S.Ct. at 591, they remain viable. In Tucker, a sentencing court gave specific consideration to two prior convictions which, having been obtained without the assistance of counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), were constitutionally infirm. The court remanded the case for resentencing because the sentence was “founded at least in part upon misinformation of constitutional magnitude.” Id. Although the government conceded at oral argument before the district court that review under Tucker was appropriate, it now contends that the magnitude of error alleged here, failure of counsel to request a certification hearing, does not rise to the level of constitutional deprivation such as the right to counsel in Tucker. The district court decided that it was not necessary to tackle the question of the extent Tucker is to be applied to cases asserting constitutional defects other than deprivation of right to counsel. Instead, the district court found that the 1974 convictions were not obtained in violation of Clark’s constitutional rights. Thus, although Tucker could trigger an evaluation of the constitutionality of the earlier sentences, it did not compel resentencing here, as the starting point, the presence of an invalid conviction, was missing. We here part company with the district court and conclude instead that Clark was indeed deprived of his due process rights in 1973 when the trial court failed to provide him with a certification hearing. This denial of due process is a defect of constitutional magnitude which Tucker is designed to protect. Because the 1974 convictions were relied upon by the 1980 sentencing court, Clark is entitled to the relief provided by Tucker and must be resentenced. Our decision that Clark was not afforded his due process rights emanates from our interpretation of the Pennsylvania statute and the caselaw analyzing its constitutional breadth. A. Whether a juvenile certification hearing is required in Pennsylvania proceedings is controlled by 42 Pa.Cons.Stat. Ann. § 6322. The statute reads in relevant part: § 6322. Transfer from criminal proceedings. (a) General Rule [I]f it appears to the court in a criminal proceeding other than murder that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings.... If Clark was in fact only 17 at the time of a criminal proceeding, he would be considered a child under Pennsylvania law. See 42 Pa.Cons.Stat.Ann. § 6302(1) (Purdon 1978). The record contains conflicting information as to Clark’s age at the time of the relevant criminal conduct in 1973. In two arrest reports filed by the police, Clark’s birth date was recorded as March 20, 1954, which would place his age at 19 years. Two commitment orders entered in family court also stated Clark’s age as 19. On the opposing side, a pre-trial services report stated, “Defendant said he is only 17.” On that form, petitioner’s date of birth was recorded as 3/23/57. Most significantly, the criminal complaint relating to the November 5, 1973 incident contained the notation “17 N/M,” law enforcement nomenclature signifying that Clark was a 17-year-old Negro male. To further even the score, on Clark’s behalf, there is the fact that Clark was indeed 17 years old at the time of the arrest, while, in the government’s favor, is the state trial court’s decision on the Pennsylvania post-conviction petition that the 1973 trial court was unaware of Clark’s actual age since he represented that he was older at the time. Based upon the fairly equivalent distribution of record evidence concerning Clark’s age, the district court found as a fact both that Clark was 17 at the time of his arrest and that the court was not aware of Clark’s actual age. Given the disparate record evidence, we cannot adhere to the usual 28 U.S.C. § 2254(d) presumption of correctness accorded to state factfinding procedures. This is simply because “the majority of facts were not adequately developed at the state court hearing.” See 28 U.S.C. § 2254(d)(3). The PCHA court’s finding that “the Court was not aware of the defendant’s actual age” is simply not borne out by the record. Granted the documentation reveals conflicting evidence as to Clark’s age, but there is no evidence of willful misstatement by Clark. In fact, the pretrial services report memorializes a directly contrary statement: “Defendant says he is only 17.” We tread cautiously in deciding exactly how this information activates application of the Pennsylvania certification statute. There is little guidance from the Pennsylvania courts as to how the statute’s language is to be interpreted in this regard. Our research has not found a case delineating the scope of the trial court’s obligation in divining the age of defendants. In Commonwealth v. Sims, 379 Pa.Super. 252, 549 A.2d 1280 (1988), the Pennsylvania Superi- or Court, citing Commonwealth v. Harris, 223 Pa.Super. 11, 297 A.2d 154 (1972), found that the Pennsylvania statute imposes a duty to transfer a criminal proceeding to a juvenile court if “it shall be ascertained that the person charged with the offense was under the age of 16 years at the time the alleged offense was committed.” In both Sims and Harris the defendants, on inquiry by the court, either misstated or refused to divulge their true ages. The court thus did not discuss the duty of the court to “ascertain” the true age of the defendants. But here, given the information indicating Clark’s age as 17 included in documents which the trial court would have had before it (particularly the criminal complaint), we are constrained to conclude that the court should have been aware of Clark’s juvenile status. The failure of the trial court to make any inquiry into Clark’s age deprived him of the possibility of being adjudicated as a juvenile. The likelihood of his being so certified and the debate as to whether such an adjudication would have actually benefitted Clark are not germane. As a 17 year old, Clark was entitled to certain safeguards and the court was remiss in not, at the least, inquiring into Clark’s eligibility for juvenile certification. B. We next broach the question of whether the failure to provide Clark with a certification hearing deprived him of due process of law. The seminal case on this issue is Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). According to the governing statute, Kent, a juvenile, was subject to the exclusive jurisdiction of the District of Columbia juvenile division unless, after full investigation, that court should waive jurisdiction. A motion had been filed in juvenile court for a hearing on the question of waiver and for access to the juvenile court’s social service file prepared during Kent’s probation for a prior offense. The juvenile court did not rule on these motions, but instead, it entered an order waiving jurisdiction accompanied by the recitation that the waiver followed the required full investigation. After Kent was indicted as an adult, he moved to dismiss the indictment, alleging that the juvenile court’s waiver was invalid, presenting various arguments as to the infirmity of the proceedings by which the jurisdiction of the juvenile court was waived. Although the Supreme Court agreed that the statute contemplated that the juvenile court should have considerable latitude within which to determine whether it should retain jurisdiction over a child, it decreed that this latitude was not all encompassing. The Court concluded that the juvenile proceeding must comport with procedural regularities sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness. Id. at 557, 86 S.Ct. at 1055. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), provided the Supreme Court with further opportunity to outline the procedures necessary for an adjudication of delinquency. The Court re-emphasized the necessity that basic requirements of due process and fairness must be satisfied in such proceedings. Gault, 387 U.S. at 12, 87 S.Ct. at 1435. We confronted the Pennsylvania juvenile’s right to due process in United States ex rel. Turner v. Rundle, 438 F.2d 839 (3d Cir.1971). In Turner, we evaluated a transfer from juvenile to criminal court and concluded that Kent, particularly in light of Gault, set forth certain principles of constitutional dimension which must be followed in connection with juvenile proceedings. We thus held that the constitutional requirements prescribed by Kent included notice of the charges, access to certain records, the right to present evidence and cross-examine witnesses, and a statement of the reasons for the waiver. Id. at 842. The district court here found that Turner did not hold that the due process clause requires that a transfer or certification or waiver hearing must always be conducted in a case involving a juvenile; rather, its holding and those of Kent and Gault mandate that any hearing provided by the state must contain certain procedural safeguards. Because Pennsylvania law does not require a hearing until petitioner’s true age appears to the trial court, in the district court’s view the trial court’s failure to conduct the hearing in this case did not violate the petitioner's constitutional rights. We have of course arrived at a different conclusion concerning the scope of the trial court’s duty under these circumstances to become cognizant of Clark’s status as a juvenile. Because we conclude that, under these particular facts, Clark was entitled to a certification hearing, it is axiomatic that the absence of the opportunity to be eligible for the procedural safeguards provided by the Pennsylvania statute represented a deprivation of due process. In our reading of Kent, Gault, and Turner a duty is imposed on courts to conduct juvenile proceedings which comport with general principles of due process. For the trial court not to have exercised sufficient diligence to inquire into whether a hearing was appropriate deprives a defendant of due process rights. We further conclude that this denial of due process rises to the level of deprivation of constitutional rights encompassed within United States v. Tucker, 404 U.S. at 449, 92 S.Ct. at 592, and mandates resentencing. Two recent Supreme Court cases implicate our decision. In Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) the sentencing jury considered a New York conviction which the petitioner maintained was constitutionally invalid because he was denied his right to appeal. The questions sought to be raised in the appeal of the New York case involved the use of a coerced confession and the failure to hold a hearing on the voluntariness of the confession outside the presence of the jury. After the Mississippi death sentence was imposed, a New York court overturned the prior conviction on the basis of constitutional infirmity. On appeal of the death sentence to the Supreme Court, the Court decided that consideration of the invalid New York conviction rendered the Mississippi death sentence unlawful. In Maleng v. Cook, 109 S.Ct. at 1927, the habeas petitioner alleged that his sentence was invalid because the court considered a prior conviction which was unconstitutionally obtained because he was mentally incompetent to stand trial. Although the Court’s holding in Maleng was limited to one of subject matter jurisdiction, the outcome that resentencing under Tucker might be necessary if the conviction were ruled invalid was not questioned. We are thus confident that an extension of Tucker to this instance wherein Clark was deprived of due process, a juvenile proceeding affording significant procedural rights is most appropriate. See Sadler v. Sullivan, 748 F.2d 820, 824, n. 12 (3d Cir.1984) (Supreme Court has held that under due process clause, fundamental fairness requires that juveniles receive benefits of essential constitutional provisions, citing, In Re Gault, 387 U.S. at 29, 87 S.Ct. at 1444 (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (proof beyond reasonable doubt); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (double jeopardy)); see also, Schmidt v. Hewitt, 573 F.2d 794 (3d Cir.1978) (if transfer to juvenile court confers substantial benefit, transfer hearing constitutionally required, citing Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 270). Indeed, it is compelled. IV. It is undisputed that the 1980 sentencing court relied upon the prior convictions of Clark as an adult when imposing the 1980 sentence. Specifically the court stated: THE COURT: I also look upon it that he has that proclivity to commit a crime and that he does so with deliberateness and does so when he doesn’t jeopardize himself too much, like after his parole is over. DEFENSE COUNSEL: Maybe that means— THE COURT: He was given a break before, and despite that he did not respond. Id. at 13-14. THE COURT:... I will give [Clark] the benefit of the doubt that he was not convicted of rape or attempted rape in the past, that it was felon Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genapel2	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 is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Verla Loraine TACKETT, Appellant, Cross-Appellee, v. Pearl KIDDER, Appellee, Cross-Appellant. Nos. 79-1459, 79-1535. United States Court of Appeals, Eighth Circuit. Submitted Jan. 14, 1980. Decided March 11, 1980. Rehearing and Rehearing En Banc Denied April 1, 1980. Charles Hanks, Fayetteville, Ark., for appellant; Wyman R. Wade, Jr., Fayetteville, Ark., on brief. Mark Lindsay, Wommack, Lindsay & Associates, Fayetteville, Ark., for appellee. Before STEPHENSON and McMILLIAN, Circuit Judges, and THOMAS , Senior District Judge. The Honorable Daniel H. Thomas, Senior United States District Judge, Southern District of Alabama, sitting by designation. DANIEL HOLCOMBE THOMAS, Senior District Judge. These cases are appealed from a granting of the appellee’s motion for judgment notwithstanding the verdict in an action based on alleged fraud in the exchange of quitclaim deeds. We affirm the judgment of the District Court. The appellant, Verla Loraine Tackett, and appellee, Pearl Kidder, are two widows who were good friends and owners of adjoining lands in Washington County, Arkansas. The legal descriptions of their respective deeds showed an overlap, with the deed of each including a portion of the other’s property. The parties exchanged quitclaim deeds intending to eliminate the overlap. The purpose of such action was to assure that both titles would be marketable. Mrs. Tackett and her now deceased husband bought the Tackett property in 1945 from Jacob Coleman, who had owned the property since 1918. Mrs. Kidder and her husband owned an adjoining farm, which they had purchased in 1941 from a Mr. Poole. The Tacketts never claimed to own any of the property north of the “old fence”, even though the description of the property-north of the fence was included on the Tackett’s deed from Jacob Coleman. The Kidders never claimed to own any of the property south of Owl Creek even though the description of the property south of the Creek was included in the Kidder deed from Mr. Poole. The Tackett house sat on property included in the description of the Kidder deed. The property which is in dispute herein is the property between Owl Creek and the “old fence” which will hereinafter be referred to as the “Tackett fence.” Both parties claim to have owned said disputed property. Mrs. Kidder alleges that a fence was immediately adjacent to Owl Creek, which followed the north bank of the Creek. Mrs. Tackett claims there was never any fence on the immediate north bank of Owl Creek. Mrs. Tackett considered the “Tackett fence” to be the boundary line, while Mrs. Kidder believed the alleged fence on the north bank of Owl Creek to be the same. Subsequent to her husband’s death, Mrs. Tackett sought to sell her property and move to Oklahoma. A prospective purchaser indicated his desire to consummate such a sale providing the overlap in deeds, which created a cloud upon the title, was removed. Mrs. Kidder informed Mrs. Tackett concerning the overlap of legal descriptions in their respective deeds and the necessity of removing such impropriety before any sale could take place. Mrs. Kidder also told Mrs. Tackett that the Tackett home was on property designated in the Kidder deed. Months after the quitclaim exchange took place, Mrs. Tackett discovered that the “Tackett fence” had been torn down and that the property between Owl Creek and the “Tackett fence” was being held under claim of ownership by other persons. Mrs. Tackett, plaintiff in the trial court below, instituted this action for compensatory and punitive damages alleging that Mrs. Kidder fraudulently procured and induced Mrs. Tackett to execute and deliver to Mrs. Kidder the quitclaim deed. Mrs. Tackett further alleged that Mrs. Kidder falsely represented that a portion of the property quitclaimed to Mrs. Kidder would be quitclaimed back to Mrs. Tackett in the exchange. Mrs. Tackett submitted that because of her trust and confidence in Mrs. Kidder, she relied to her detriment on the latter’s representations which were allegedly made maliciously and with knowledge of their falsity. Mrs. Tackett sued for compensatory damages of Five Thousand Dollars ($5,000.00) for the value of the land and for Twenty Thousand Dollars ($20,000.00) punitive damages. The jury returned a verdict for Mrs. Tackett for Fifteen Thousand Dollars ($15,-000.00) on April 5, 1979. On April 10,1979, Mrs. Kidder filed a Motion for Judgment N.O.V. or, in the alternative, for a new trial. The trial judge granted Mrs. Kidder’s Motion for Judgment N.O.V. and filed a Memorandum Opinion of the Court on May 2, 1979. In his opinion the trial judge entered a judgment notwithstanding the verdict in favor of Mrs. Kidder and dismissed Mrs. Tackett’s complaint with prejudice. I, Appellee’s Motion for Judgment Notwithstanding the Verdict. Appellant contends that viewing the evidence most favorably to her and giving her the benefit of all reasonable inferences, the trial court erred in granting appellee’s motion for judgment n. o. v., instead of ruling that the evidence was sufficient as a matter of law to support the jury’s verdict for appellant. Despite our deference to the findings of the jury, we align ourselves with the position of the trial judge. The motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in just the same way as does the motion for directed verdict at the close of all evidence. Shaw v. Edward Hines Lumber Co., 7 Cir., 249 F.2d 434. In a doubtful case the court may prefer to deny the motion for a directed verdict,' and consider the attack on the sufficiency of the evidence subsequently on motion for judgment n. o. v. If a verdict is directed and the appellate court holds that the evidence was in fact sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is greatly expedited. If the jury agrees with the Court’s appraisal of the evidence, and returns a verdict for the party who moved for a directed verdict, the case is at an end. If the jury brings in a different verdict the trial court can grant judgment notwithstanding the verdict. Then if the appellate court holds that the trial court was in error in its appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. Wright and Miller, Federal Practice and Procedure, § 2533, Pg. 586. “ * * * a motion for [a] directed verdict or [a] judgment notwithstanding the verdict should be granted if there is no substantial, i. e., not more than a mere scintilla of evidence to sustain the verdict.” U. S. v. Strebler, 313 F.2d 402 (8th Cir. 1963) (See Footnote 1, page 403). “The scintilla-evidence rule is not applied in federal courts.” Mann v. Bowman Transportation, Inc., 300 F.2d 505 (4th Cir. 1962). The problem, however, lies not with merely stating the rules, but with applying them to a particular set of facts. Were the scintilla rule to be followed in cases such as this, we might easier find error by the trial court in its granting of the motion n. o. v. However, as heretofore stated, the standard is that of substantial evidence to support a verdict. Our careful reading of the transcript reveals no such evidence. The complaint is bottomed on misrepresentation “with knowledge of their falsity and with malice and intent to injure.” The testimony reveals at most an unfortunate misunderstanding. We are unable to find substantial evidence of fraud from the testimony. Granted, a judgment n. o. v. may at times seem harsh, however, we agree with the trial judge whose presence at the trial afforded him a much better vantage point from which to evaluate the evidence not from a transcript alone, but from seeing and observing the witnesses themselves. II. Subject Matter Jurisdiction. Although our finding supporting the judgment n. o. v. for all practical purposes removes the need for appellee’s assertion of failure to satisfy the requisite amount in controversy requirement, we feel it beneficial to summarily speak to that issue. Appellee asserted that the maximum amount involved was only $4,050.00 and therefore did not meet the requisite diversity amount. We disagree. Arkansas law permits punitive damages for fraud. Satterfield v. Robsamen Ford, Inc., 253 Ark. 181, 485 S.W.2d 192. Appellant’s original complaint sought $5,000.00 compensatory damages and $20,000.00 punitive damages. It is stated in Wright, Law of Federal Courts, 3rd ed. pp. 128, 129: The court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount which he has demanded. Thus suppose that plaintiff demands actual damages of $5,000.00 and punitive damages of $20,000.00. If under the applicable rule of law, punitive damages are not recoverable, it can be said that there is a legal certainty that plaintiff will not recover the amount demanded and the action will be dismissed. If the relevant state law permits punitive damages on the facts alleged, the requisite amount is in controversy, even though it may be unlikely that the amount demanded will be had. III. Appellant’s Proposed Jury Instructions. Appellant contended that the trial court committed error in failing to give her proposed jury instruction number three, to wit: that appellee was liable for the misrepresentations of her agents when committed in the course and scope of their employment. Suffice it to say that the trial judge’s determination that such representations were not in fact made renders this issue moot at this juncture. IV. Appellee’s Motion for Judgment N.O.V. or a New Trial. Appellee requested that should the trial court’s order for judgment n. o. v. be reversed on appeal, that she be granted a new trial by the trial court. The trial judge took the position that by granting appellee’s motion for judgment n. o. v., her alternative motion for a- new trial was thereby rendered moot in the trial court. Despite the obvious unimportance of this issue currently, we cite the case of Mays v. Pioneer Lumber Corp., 502 F.2d 106, 110 (4th Cir. 1974); 5A MOORE’S FEDERAL PRACTICE 1150.14. In Mays, supra, the trial judge granted a judgment n. o. v. but failed to comply with Fed.R.Civ.P. 50(c) and did not rule on the motion in the alternative for a new trial. The Fourth Circuit reversed the judgment n. o. v. and ruled on the motion for a new trial, denying said motion. In doing so, the court noted that since the Court of Appeals may reverse the grant of a new trial and order entry of judgment on the verdict, it would seem absurd to hold that this remedy is circumscribed by the trial court’s failure to comply with the mandate of Fed.R.Civ.P. 50(c) to rule on the motion for a new trial. AFFIRMED. . The Honorable Paul X Williams, Chief Judge, United States District Court, Western District of Arkansas. . Trial Court’s Mem. Opinion Exhibit “A”. . Tr. 125. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_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 ABERNATHY et al. v. ALABAMA. No. 9. Argued October 12-13, 1964. Decided April 5, 1965. Louis H. Poliak argued the cause for petitioners. With him on the brief were Jack Greenberg, Constance Baker Motley, James M. Nabrit III, Fred D. Gray and Charles S. Conley. Leslie Hall, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Richmond M. Flowers, Attorney General of Alabama. Per Curiam. The judgments are reversed. Boynton v. Virginia, 364 U. S. 454. Mr. Justice Black and Mr. Justice White took no part in the consideration or decision of this case. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Wesley E. GREEN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant-Appellee. No. 85-3876. United States Court of Appeals, Ninth Circuit. Submitted April 24, 1986. Decided Oct. 28, 1986. James L. Edmunson, Malagon & Associates, Eugene, Or., for plaintiff-appellant. Richard H. Wetmore, Sp. Asst. U.S. Atty., Seattle, Wash., for defendant-appellee. Before FARRIS, BEEZER and BRUN-ETTI, Circuit Judges. The panel is unanimously of the opinion that oral argument is not required in this case. Fed.R.App.P. 34(a). BRUNETTI, Circuit Judge: Wesley E. Green appeals the district court judgment affirming the decision of the Secretary of Health and Human Services (the Secretary) denying disability benefits. Green contends that (1) the administrative law judge’s (AU) negative credibility finding was legally improper; and (2) the Secretary’s determination that Green can do light or sedentary work was therefore not supported by substantial evidence. We disagree and affirm. I. FACTS AND PROCEEDINGS BELOW Green was fifty-four years old when he appeared before the AU. He has an eighth-grade education. He had done primarily heavy, skilled labor as a millwright. He applied for disability benefits in 1978 and 1981, and was denied both times. In February 1983 he again applied for disability benefits, alleging onset of disability in December 1980 due to degenerative arthritis in his right knee, coronary artery disease, chronic obstructive pulmonary disease, and some history of seizures of undetermined etiology. The Secretary of Health and Human Services (Secretary) denied Green’s application initially and again on reconsideration. After a hearing, an AU ruled that Green’s medical impairments prevent him from returning to his former job, but found that Green retains the residual functional capacity to perform light or sedentary work. In addition, the AU found that jobs Green could perform exist in the region. The AU therefore concluded that Green was not disabled. After the Appeals Council denied his request for review, Green filed a complaint in district court. The district court affirmed the Secretary’s denial. Green timely appeals. II. STANDARD OF REVIEW The Secretary’s decision denying benefits will be disturbed only if it is not supported by substantial evidence or it is based on legal error. Nyman v. Heckler, 779 F.2d 528, 530 (9th Cir.1985), amended on other grounds, No. 85-3726 (9th Cir. Feb. 24, 1986). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). This court must consider the record as a whole, weighing both the evidence that supports and detracts from the Secretary’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985); see also Swanson v. Secretary of Health & Human Services, 763 F.2d 1061, 1064 (9th Cir.1985). III. DISCUSSION To qualify for disability benefits, the claimant must establish that a medically determinable physical or mental impairment prevents him from engaging in substantial gainful activity. The claimant must demonstrate that the impairment is expected to result in death or to last for a continuous period of at least twelve months. Jones, 760 F.2d at 995; Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 42 U.S.C. § 423(d)(1)(A). Additionally, the impairment must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical or laboratory diagnostic techniques. Gallant, 753 F.2d at 1452; 42 U.S.C. § 423(d)(3). In hearings arising out of a claimant’s initial application for benefits, the claimant has the burden of proving he is disabled. Swanson, 763 F.2d at 1064; Gallant, 753 F.2d at 1452. The claimant establishes a prima facie case of disability by showing that a physical or mental impairment prevents him from performing his previous occupation. Gallant, 753 F.2d at 1452. The burden then shifts to the Secretary to show that the claimant can perform other types of work existing in the national economy, given his residual functional capacity, age, education, and work experience. Id.; see also 20 C.F.R. §§ 404.1520(f), 404.-1560-.1568 (1985). In addition, when a claimant reapplies for disability benefits after an earlier denial, that earlier denial precludes the claimant from arguing that he was disabled during the period covered by the earlier decision. Furthermore, it creates a presumption that the claimant was able to work beyond the date of the earlier decision. Miller v. Heckler, 770 F.2d 845, 848 (9th Cir.1985); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985). The claimant therefore carries the burden of showing “changed circumstances,” i.e., showing that his impairments have become more severe since the date of the earlier decision. Taylor, 765 F.2d at 875. A. Green’s Testimony Green testified that he experienced severe shortness of breath or asthma attacks after engaging in mild exercise, such as walking for fifty to one hundred yards or climbing a flight of stairs. He stated that he experiences “very bad pain” in various joints at different times, not just in his right knee, and that when he maintains one position for very long, the pain becomes so bad that he cannot concentrate. He reported that he fairly predictably has chest pain four to six hours after exerting himself. Green has not worked since January 1978. He is no longer able to enjoy his normal recreational activities, such as hunting and fishing. He testified that he is largely housebound, and his activities are mainly limited to reading and watching television. He also reported numbness and stiffness in his hands, which often causes him to drop dishes or spill his coffee. B. The Medical Evidence Green submitted evidence to substantiate the following medical impairments: First, he has chronic pain and some instability and functional limitation in his right knee, stemming from an injury in 1948. The knee has required surgery four times, most recently in 1978. His condition has been diagnosed variously as “moderate osteoarthritis,” “moderately advanced degenerative joint disease,” or “severe degenerative arthritis.” He uses a weight-bearing brace and one treating physician reported that he cannot squat. Second, he has chronic obstructive pulmonary disease. This condition was described as “fairly minimal” based on November 1981 test results. Based on a pulmonary function test administered in April 1983, Green’s physician concluded that he had “minimal restrictive disease with moderately severe obstructive disease, partially responsive to bronchodilators.” Third, he has coronary artery disease, which has been documented by angiography. He reports chest pain, and a number of treating physicians have concluded that this chest pain is probably due to angina. At the same time, however, several treating physicians have commented that the pain Green reports is not typical angina pain, and therefore might not be angina. The pain is not reliably produced by exercise. One doctor suggested that the pain might be due to coronary artery spasm. Finally, on at least two occasions (October 1982 and January 1983), Green has sought medical attention as a result of seizure-like episodes. A consulting neurologist concluded that these were probably epileptic seizures, but an electroencephalogram and a neurological examination failed to confirm this clinically. One consulting physician concluded that the incidents were probably hysterical or psychosomatic in origin. A number of the treating physicians have evaluated or at least commented on Green’s residual functional capacity. None considered Green totally disabled. Dr. Zidd, who saw Green after his October 1982 seizure, commented that upon discharge Green could “resume full activity.” Dr. Wheeler administered a treadmill exercise tolerance test in May 1983 as part of a disability assessment. He commented that the electrocardiogram yielded no evidence that exercise induced ischemia. He rated Green’s overall cardiorespiratory fitness as “average.” He concluded that Green is able to stand, walk, or sit for six hours per eight-hour day, and is able to lift or carry twenty-five pounds frequently. C. The AU’s Findings The AU conceded that Green has certain medical impairments (i.e., severe degenerative arthritis of the right knee, coronary artery disease, and chronic obstructive pulmonary disease), and concluded that these impairments render Green unable to return to his former occupation. The AU believed that Green’s subjective complaints were “made sincerely,” but he found this testimony “not credible” to the extent it was “not corroborated by the objective medical evidence.” The AU found that Green therefore had the residual functional capacity to perform light or sedentary work, and that he is accordingly able to perform jobs that exist in the region. Based on these findings, the AU concluded that Green was not disabled. The medical reports provide substantial evidence supporting the Secretary’s determination that Green has the residual functional capacity to perform light or sedentary work. See 20 C.F.R. § 404.1567(b) (1985). D. Analysis Green contends that the AU’s finding of no disability is not supported by substantial evidence. He argues that the AU erroneously found Green’s pain testimony incredible. Moreover, the Secretary’s own vocational expert testified that if Green’s pain testimony is believed, Green should be considered disabled. It is undisputed that Green has certain medical impairments that could reasonably be expected to produce a certain amount of pain and limitation. Green’s testimony, however, indicated that he experienced significantly more pain and limitation than would normally be expected for a person with his impairments. The Secretary is not required to believe a claimant’s complaints of pain. The Secretary can disregard such self-serving testimony whenever the claimant fails to submit objective medical findings establishing a medical impairment that could reasonably be expected to produce the claimed pain. Nyman, 779 F.2d at 531; Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985). However, she must make specific findings justifying that decision. Miller v. Heckler, 770 F.2d 845, 848 (9th Cir.1985); Bellamy v. Secretary of Health and Human Services, 755 F.2d 1380, 1382 (9th Cir.1985). Section 423(d)(5)(A) states that an “individual’s statement as to pain ... shall not alone be conclusive evidence of disability ... there must be medical signs and findings ... which show the existence of a medical impairment ... which could reasonably be expected to produce the pain____ Objective medical evidence of pain ... must be considered in reaching a conclusion as to whether the individual is under a disability.” However, this court recently stated that we have “never required that the medical evidence identify an impairment that would make the pain inevitable.” Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986). We further stated that Congress intended section 423(d)(5)(A) to mean that “so long as the pain is associated with a clinically demonstrated impairment, credible pain testimony should contribute to a determination of disability.” Id. at 1488 n. 4 (emphasis in original). Howard must be distinguished from the instant case on its administrative procedural posture. In Howard, the ALJ believed the claimant testified truthfully and had severe impairments that could reasonably produce his pain. The Appellate Council, however, rejected the claimant’s pain testimony with no analysis or reference to the AU’s detailed findings of severe impairments. We held that when the Council rejects an AU’s credibility findings, it must state reasons for doing so and the reasons must be based upon substantial evidence in the record. Id. at 1487. An AU’s assessment of pain level is entitled to great weight. Id. at 1488; see also Nyman, 779 F.2d at 531. In the instant case, the Appellate Council accepted the AU’s finding that Green’s pain testimony was incredible. The AU thoroughly discussed the medical evidence in making his credibility finding. The physicians’ reports consistently fail to find an association between Green’s medical ailments and his degree of pain. Therefore, as stated in Howard and Nyman, we will give the AU’s assessment great deference. We hold that the AU’s credibility finding was not erroneous and affirm the Secretary’s decision denying disability benefits. AFFIRMED. . A claimant’s residual functional capacity is what he can still do despite his physical or mental limitations. 20 C.F.R. § 404.-1545(a) (1985). 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_method	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. LOWELL O. WEST LUMBER SALES, a corporation, Appellant, v. UNITED STATES of America, Appellee. No. 16115. United States Court of Appeals Ninth Circuit. Aug. 14, 1959. McAllister & Johnson, Sacramento, Cal., for appellant. George Cochran Doub, Asst. Atty. Gen., Alan S. Rosenthal, David N. Webster, Attys., Dept. of Justice, Washington, D. C., Lynn J. Gillard, U. S. Atty., San Francisco, Cal., for appellee. Before POPE, HAMLIN and JERT-BERG, Circuit Judges. JERTBERG, Circuit Judge. This is an appeal from a judgment of the United States District Court entered in favor of the United States Government (hereinafter government), and dismissing the complaint of Lowell 0. West Lumber Sales, a California corporation (hereinafter appellant) on an action arising from the interpretation and performance of certain agreements between the parties. As background to the controversy, the record shows that on October 6, 1950, appellant’s assignor, Lowell 0. West, and the United States Air Force executed a document designated “Fixed Price Contract for Services, Department of the Air Force,” which was prepared by an employee of the government, and consists of 17 pages, of which two are partially typewritten, four fully typewritten, ten are standard form clause in fine print with some typewritten additions, and one is for signatures. The pertinent parts of the contract appear in Appendix I to this opinion. Under this document the first call was issued on October 6, 1950, the date the document was signed. In simple letter form, it provided that “in accordance with the provisions of subject contract you [appellant] are requested to furnish services of lumber storage and special millwork, as required, for the period beginning with the date of this call and extending through 30 June 1950,” the end of the then current fiscal year. On July 1, 1951 and July 1, 1952, identical calls were issued to cover the ensuing fiscal years. Effective November 1, 1950 the Air Materiel Command, from its headquarters at the Wright Patterson Air Force Base, Dayton, Ohio, established a procedure by which requisitions for lumber needed by the Air Force within any o’f three zones into which the continental United States was divided for that purpose would be directed to the bulk lumber storage plant located in the particular zone from which the request was made. Appellant’s facility, Richfield District Air Force Storage Plant, California, was designated as the place to which requisitions were to be directed from Air Force installations in the “Western Zone” of the United States. Subsequently certain provisions of the basic document were modified by three “Supplemental Agreements”. Supplement I, entered into on October 31, 1951 contained (1) the government’s consent to the transfer and assignment by Lowell O. West of his rights and duties under the basic document to Lowell 0. West Lumber Sales, a California corporation; (2) a new schedule of rates; and (3) a clause providing for a redetermination of the rates by negotiation between the parties for services already performed as well as for future services. Supplement II, executed on November 12, 1951, increased the amount of money available for services under the contract from $1,500,000 to $4,000,000. With this and other indications of government needs, appellant increased its plant and facilities to meet demand, at a total cost of approximately $500,000. Pursuant to the provisions of Supplement I providing for price revision, the government and appellant in October 1952 entered into negotiations which resulted in a determination that appellant’s charges during the period October 6, 1950 to June 30, 1952 were excessive, and appellant agreed to repay the government the sum of $801,146.00. Since appellant had reduced its prices and made refunds in the amount of $404,587.00, this left a net refund due the government of $396,559.00. A government witness who participated in the negotiations testified that once the repayment figures had been agreed upon the usual Air Force practice was to require the contractor to make immediate payment. However, in this case the witness testified appellant stated it did not have the cash available to make immediate payment and therefore arrangements were made, which were formalized in Supplement III, allowing appellant to give a note for the indebtedness secured by a mortgage on the corporate personal property and a deed of trust on the corporate real property used in providing the services under the basic document. In discharge of the indebtedness appellant agreed to pay $72,000 annually in two equal installments of $36,-000 each. It is recited in Supplement III that it was entered into on November 19, 1952. However, the letter transmitting to appellant the fully executed supplement in final form is dated April 27, 1953. Because of changes in Air Force policy as to the type of services provided by the appellant, the basic document was terminated by means of a formal termination notice which bore the same date as the Supplement III letter of transmittal, April 27, 1953. The government testimony was, however, that the two documents had been prepared by different persons, although both within the Air Materiel Command. Subsequently the Air Force contracting officer rejected appellant’s request for damages, and ruled that it was entitled to nothing by way of costs in connection with the termination. In accordance with the disputes clause of the basic document, appellant appealed to the Secretary of the Air Force. The appeal was heard by the Armed Services Board of Contract Appeals (hereinafter Board) which, in such matters, acts for the Secretary. The board rejected the government’s argument that the basic document created no obligation on the government, and found the instrument was intended by the parties to be a requirements contract covering the needs of the government for the term of the contract, subject only to the availability of funds. The decision was concurred in by 16 of the 17 members, the 17th being absent. The board ordered the case remanded to the contracting officer for the purpose of fixing damages. At this point the Assistant Secretary of the Air Force (Materiel) suspended further proceedings on the ground that the question of whether the basic document was a “call” or “requirements” type contract was then pending in the United States District Court for the Western District of Missouri in a similar case. Meanwhile, on June 5,1954, and before the Missouri case was decided, appellant filed its complaint in this action, seeking to quiet title to the real and personal property which it had mortgaged to the United States. The basis for relief was that the note had allegedly been issued by an officer of the corporation without the requisite authority and that the corporation had never ratified his action. In addition, it was alleged that the note and mortgage had been procured by the fraud of an agent of the government. Appellant prayed that the mortgages be delivered up, cancelled and satisfied on the record. The government denied the allegations of fraud, the lack of authority of the corporate officer, and in addition filed three counterclaims. The first and second counterclaims were grounded on the promissory note which was then in default. The government demanded judgment for the amount of the note, foreclosure of the mortgage, and sale of the properties. A third counterclaim was for judgment in the amount of $39,445.-00, plus interest, representing the amount of price revision for the period from July 1, 1952 through December 31, 1952, which was subsequent to the period which had been the subject of previous price revision negotiations and agreement. On December 8, 1955, 17 months after the answer and counterclaim had been filed, the board rendered its decision which we have discussed above. Upon stipulation appellant then filed a supplemental pleading and the government filed a fourth counterclaim. The government’s fourth counterclaim asked judgment of $29,940.00, covering price revisions for the period January 1, 1953 to June 1, 1953, for which the board had ruled appellant was liable. Appellant’s pleading alleged that by reason of the board’s construction of the contract appellant was entitled to a credit as an offset against relief, if any, granted the government on its counterclaim. The government filed an answer to the supplemental pleading in which it asserted that (1) the district court lacked jurisdiction over the subject matter since the appellant’s claimed credit exceeded the $10,000 limitation of the Tucker Act, 28 U.S.C. § 1346(a) (2); and (2) that the basic document was a “call” and not a “requirements” type contract, and accordingly no liability attached to its termination. The trial court, on the issues which were finally presented to it for decision, found that (1) the parties had entered into a “call” type contract by which appellant agreed to supply certain lumber milling and storage services to the government, but which did not contain a corresponding obligation on the part of the government to make any requests for the services; (2) appellant was liable on the promissory note given to the government and the government was entitled to have the property described in the mortgage and deed of trust sold and the proceeds applied in payment of the indebtedness consisting of $360,559.00, the principal sum of the note, with interest of $92,233.88, attorney’s fee of $1,000.00, and expenses of $100.00; and (3) appellant was liable for further excessive prices charged pursuant to the basic document and its supplements in the amount of $39,445.00 for the period July 1, 1952 to December 30, 1952, and for the amount of $29,940.00 for the period January 1, 1953 to June 30, 1953. From this judgment the present appeal has been taken. We turn first to a consideration of the basic document. The government contends that it is not a contract, arguing that the document merely provides that if called upon by the government appellant would provide the services requested in the manner outlined in the basic document. This interpretation is based on the premise that the language of the document itself compels that conclusion. Such a premise is untenable. The key language of the document, relied on by the government that “the contractor shall furnish said services when and as the government may make calls for hereunder during the period set forth in clause 3” does not exclude the interpretation sought by appellant, that the government was obligated to make the calls to appellant if it made any at all in the western area of the United States. The proper inquiry, then, is whether the writing reflects the entire agreement of the parties. The answer depends wholly upon the intent of the parties to the agreement which must be determined, first, from the expressions in the contract, and if not there expressed, then from the conduct and conversations of the parties and the surrounding circumstances. “In deciding upon this intent, the chief and most satisfactory index for the judge is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element; if it is not, then probably the writing was not intended to embody that element of the negotiation.” 9 Wigmore on Evidence, § 2430, pages 98-99; see also Producers Livestock Loan Co. v. Idaho Livestock Auction, Inc., 9 Cir., 1956, 230 F.2d 892, 894-895; Simmons v. California Institute of Technology, 1949, 34 Cal.2d 264, 274, 209 P.2d 581. Cf. Anderson v. Owens, 9 Cir., 1953, 205 F.2d 940, 943, applying Washington law. Here the plain fact is that the question of whether the government is obligated to place calls with the appellant is simply not covered or dealt with in any way in the contract. The government prepared the contract; it could have easily eliminated any doubt as to its obligation to make a call, if any, from appellant. It chose not to do so. Therefore, although the contract from its terms could be characterized as a “call” type contract, it could not from its terms be classified as one in which the parties had eliminated all reasonable doubt of its also being a “requirements” type contract. From the language used, it is not unreasonable that the parties intended that calls should be made when and as the government required the services for the western United States during the period of the contract. It is elementary that a contract, in which one party has agreed to supply and the other party has agreed to take all of its requirements, if it has any requirements, for a specified period, has the necessary mutuality of obligation to form a valid and enforceable contract. From this it follows that the interpretation of the transaction is not so clear as the district court indicated. True, characterization of the agreement is a question of law, but that characterization can rest only on the intent of the parties. Here the government’s own contract fails to reveal the intent of the parties as to whether or not the government was obligated to make calls. Therefore, the intent can be determined only from the conduct and conversations of the parties and the surrounding circumstances. This is clearly a factual determination. The board specifically found as a matter of fact that “all the circumstances surrounding the manner in which the contract was handled by the parties * * * evince an understanding by them that it — the contract — was in fact one covering the requirements of the Government and subject only to periodical notices as to availability of funds.” Under the circumstances of this case, this finding of fact is sufficient to settle the matter and require a finding by the trial court that the basic document is a binding contract on both parties unless there is a compelling reason why it should not be binding. United States v. Wunder-lich, 1951, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113. The government urges, however, that there is a reason why the finding is not binding on the court. It argues that even if this is a finding of a factual question it is a type of factual question the solution of which does not require the professional knowledge and skill of a specialized board and is therefore not encompassed within the finality provisions of Article 12 of the basic document. Rather, the government maintains it is a question which can have significance only in relation to the interpretation of the contract and, therefore, if the court is to interpret the basic agreement it must retain the power to investigate the facts upon which the board based its legal conclusions. The government points out that the Court of Claims in dealing with this problem has said that: “The rule is well established by the decided cases that in contracts of this character where [in a disputes clause] it is provided that the decision of the contracting officer and the head of the department shall be final and conclusive only as to questions of fact, a decision or ruling on a protest or appeal which involves or is based upon an interpretation and construction of a contract and the specifications is a decision on a question of law rather than the determination of a fact and does not preclude the consideration, decision, and determination by the court of the question in controversy, including the facts.” Callahan Construction Co. v. United States, 1940, 91 Ct.Cl. 538, 616. In Rust Engineering Co. v. United States, 1938, 86 Ct.Cl. 461, 473-474, cited in the Callahan case as authority, a contractor did not appeal from an adverse decision of a board of officers of the 'Treasury Department as provided in the disputes clause of his contract. The government argued he had not exhausted his .administrative remedy and the Court of ■Claims was without jurisdiction. The ■Court of Claims held it did have jurisdiction, pointing out that the disputes ■clause was final only as to questions of fact, and since the board made no findings of fact there was nothing from which an appeal was required to be taken. The Court of Claims then interpreted the specifications of the contract based on its own findings of fact. In the Callahan case the Court of Claims also made its own determination of the facts but this was where “practically all the decisions and recommendations of the contracting officer and the head of the department in regard to practically all the claims in suit were based upon constructions which they placed upon certain articles of the contract and the specifications, rather than upon their findings upon disputed questions of fact.” 91 Ct.Cl. at page 610. As to factual questions which the contracting officer did resolve but which the Court of Claims did not follow, the court found the contracting officer’s determinations were arbitrary and so grossly erroneous as to imply bad faith. 91 Ct.Cl. at pages 564, 593 and 651. While it is true that in making its decisions as to questions of law the Court of Claims will consider the underlying facts and make a determination as to them, its cases, cited by the government, do not go so far as the government would have us to go here and, in effect, classify questions of fact into two distinct categories, those relating to questions of law which can be determined de novo by the courts, and those which are not related to questions of law which cannot be considered de novo. But whatever the policy of the Court of Claims might be on this subject, we cannot accept the goverment’s argument. We believe the proper treatment of this problem can be reached by the application of Sections 321 and 322 of Title 41. These sections do not authorize the fine distinction sought by the government but, by the same token, they do not preclude a court charged with interpreting a contract from investigating the facts upon which the department or agency determinations were made. Section 321 when read with Section 322 clearly defines the legislative policy. When the department or agency head has made a decision as to a question of fact it shall be final unless the same is “fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” From this it follows that the board’s factual determination is binding on the court unless it can find that the determination is subject to at least one of these defects. Here the district court failed to make such a finding. The government, whose burden it was to show that the board’s finding of fact was not binding upon the trial court, did present testimony before the trial court from which the court could have held that it was not the intention of the Air Force contracting officer to obligate the government to purchase any of their requirements from the appellant when he was negotiating the basic agreement. From this it could be inferred that there was some evidence to support the trial court’s rejection of the board’s findings as to the intention of the parties. But the test which must be applied is not whether there was evidence to support the district court’s determination, but rather it is whether there was a substantial showing in the district court that the board’s determination was, in the language of Section 321, “fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” The record of the proceedings before the board has not been brought before this Court. Therefore, the matter must be returned to the district court for its determination of whether there is some basis within the meaning of Section 321 of Title 41 to prevent from being binding on the district court the finding of fact by the board that the basic document was intended to be a requirements contract. This determination should be based on any further evidence the parties may wish to introduce on this issue. The government contends that even if it is subject to termination damages, the appellant in no event could “obtain a judgment in this proceeding in excess of the $10,000 jurisdictional limit imposed on the district courts by the Tucker Act, 28 U.S.C. § 1346(a) (2) .” This contention, however, ignores the provisions of 28 U.S.C. § 2406, which recognizes the right of an individual to claim a credit when sued for damages by the government. While the section does not authorize an affirmative judgment against the United States, it does allow a properly established credit against the government to the extent of the government’s claim. United States v. Wilkins, 1821, 6 Wheat. 135, 146, 5 L.Ed. 225, 227-228; In re Greenstreet, Inc., 7 Cir., 1954, 209 F.2d 660, 664, 667; see also United States v. Shaw, 1940, 309 U.S. 495, 501, 60 S.Ct. 659, 84 L.Ed. 888; Bull v. United States, 1934, 295 U.S. 247, 261-263, 55 S.Ct. 695, 79 L.Ed. 1421. Cf. United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 511, 60 S.Ct. 653, 84 L.Ed. 894. This, in effect, is what the appellant seeks in its supplemental pleading. The trial court, in deciding the basic document as a matter of law was a “call” type agreement which did not obligate the government, did not reach the issues connected with the appellant’s claim for credit and in accordance with the pretrial order no evidence was introduced on this subject. On remand, if the court determines that the board’s finding as to the intention of the parties is binding, then, as we have pointed out, it must follow that the basic document was a binding contract on both parties for the termination of which appellant is entitled to a credit in the amount of its damages as a setoff against and up to the extent of the relief granted the government, provided, of course, the appellant’s claim for credit is established. In the light of our holding requiring further proceedings in the district court, we deem it unnecessary to consider the appellant’s argument that it was denied a fair trial because of the court’s rulings relative to the binding effect of the board’s findings of fact. We turn now to a consideration of the appellant’s final contention, which requires a determination of appellant’s liability on a promissory note for $396,559.-00 which plaintiff owed as a result of price renegotiation. Appellant’s contention is that the Supplement III, which provided for the promissory note secured by a mortgage and deed of trust, is invalid because the cancellation of the basic agreement on which the supplement relied was a failure of consideration for the appellant’s promises contained in the Supplement III. Appellant argues that the only consideration for execution of Supplement III, which required appellant to execute the note, was the extension of the basic agreement to December 1955. The government, on the other hand, contends that the first supplement to the basic agreement, in which the appellant agreed that if a price redetermi-nation resulted in decreases of prices it would repay any decrease to the government “as the contracting officer may direct”, is controlling, and that the subsequent execution of the note and deed of trust by the appellant were merely in pursuance of this agreement. From this the government argues that the consideration for the issuance of the promissory note and the execution of the mortgage and deed of trust comes not from Supplement III, but from the underlying debt, which the appellant has admitted, and from the extension of time granted by the government in which to pay the debt. From the record it is clear appellant owed the money, and it is equally clear that in Supplement I appellant agreed to pay any indebtedness resulting from price redetermination negotiations “in such manner as the [government] contracting officer may direct.” This presents the question of whether the note is supported by consideration other than that contained in Supplement III. Appellant’s promise to pay back any overpayment it had received contained in Supplement I is supported by the consideration of the government’s recognition and consent to the transfer and assignment of rights under the basic contract from Lowell O. West, an individual, to Lowell O. West Lumber Sales, a corporation, and the government’s promise to increase the contractor’s payments if the revised prices exceeded the contract prices. In conformance with these provisions of Supplement I, the exact figure of the indebtedness was arrived at through negotiation and appellánt conceded its obligation. The government could have forced immediate payment. It refrained from doing so. Instead it took a note for the amount then due and granted an extension of time in which to pay the then liquidated amount. Appellant did not then and does not now dispute its liability for this amount. The acceptance by the government of the note secured by the mortgage and deed of trust given as payment for the underlying debt constitutes sufficient consideration for the note. Uniform Negotiable Instruments Law, § 25; West’s Ann.Civ.Code California, § 3106, Cinema Schools v. Westchester Fire Insurance Co., D.C.Cal.S.D.1932, 1 F.Supp. 37, 39. Appellant in its brief states that the determination of the question as to whether the repayment by the contractor was conditional was decided against the government in the proceedings before the board. Such an assertion is unfounded. The board did refer to the point but that was only to show, from the testimony of a government witness who testified that he assumed that appellant would continue in business and have an opportunity to liquidate the indebtedness, that the contract was intended to be for the government’s requirements. The board certainly did not decide the question of whether the note was conditioned on continuance of the contract. Nothing else appears in the record indicating the trial court erred in finding there was no such condition. The subsequent cancellation of the basic document, therefore, had no effect on the note which, as we have discussed, was otherwise supported by adequate consideration. The judgment of the district court dismissing appellant’s supplemental pleading in which appellant seeks to establish a credit against the relief granted appellee on its counterclaim is reversed, and the cause is remanded to the district court for further hearing and proceedings on this issue, consistent with views expressed herein. In all other respects the judgment is affirmed. Appendix I The pertinent provisions of the basic contract are as follows; “Fixed Price Contract for Services, Department of the Air Force (United States Air Force) “Contractor: Lowell O. West, an Individual Doing Business as Lowell O. West Lumber Sales. “Contract for: Lumber Storage and Special Millwork Services (On Call). “Fixed Price: Not to exceed $1,500,-000.00. * ***** “This Contract is for the general utilization by the service or services named herein. All calls on the Contractor or orders for performance of services or delivery of supplies hereunder issued either by this Contracting Service or for a Service other than the Contracting Service will contain the certificate of availability of funds, quoting the Allotment number to be used in making payments. “Allotment: To be set forth in each Call issued hereunder. * * * * * * “1. Services To Be Furnished: “(a) The Contractor shall furnish and supply to the Government lumber storage services and special lumber millwork services in connection with Government-owned lumber delivered by the Government to the Contractor’s plant located at Richfield, Tehama County, California, approximately 125 miles north of Sacramento, California. Such services shall be furnished in accordance with Technical Order No. 22-1-2 dated 10 August 1944 and Technical Order No. 22-10-1 dated 18 March 1947. “(b) The Contractor shall furnish said services when and as the Government may make Calls for hereunder during the period set forth in Clause 3 hereof. “(c) Calls by the Government hereunder will be made by the Contracting Officer, Headquarters Air Materiel Command, by written notification to the Contractor. Each such Call shall set forth the services to be furnished, the time of performance and the estimated cost. Immediately upon receipt of each such Call, the Contractor, subject to the provisions of paragraph (e) of this Clause 1 and paragraph (c) of Clause 2 shall proceed to furnish the required services. * * * -X- * * “2. Consideration and Payment “(a) The Contractor shall be paid the following prices upon satisfactory performance of this contract and upon the submission of properly certified invoices or vouchers therefor as full payment for services furnished by the Contractor pursuant to Calls issued by the Government during the period commencing 6 October 1950 and ending 30 June 1951: ****** “(b) The prices for services to be called for after 30 June 1951 shall be negotiated by and agreed upon by the parties hereto prior to the issuance of Calls by the Government for such services and shall be evidenced by an appropriate Supplemental Agreement to this Contract. Calls for services to be performed after 30 June 1951 are subject to availability of funds.” * * * “3. Period of Performance “The Contractor shall furnish services under this contract when and as the Government may make calls for hereunder during the period commencing 6 October 1950 and ending 31 December 1952.” **** “12. Disputes.- — Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Secretary, and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall be final and conclusive; provided that, if no such appeal is taken, the decision of the Contracting Officer shall be final and conclusive. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision.” “13. Definitions. — As used throughout this contract, the following terms-shall have the meanings set forth below r “(a) The term ‘Secretary’ means the Secretary, the Under Secretary, or any Assistant Secretary of the Department and the head or any assistant head of the executive agency; and the term ‘his duly authorized representative’ means any person or persons or board (other than the Contracting Officer) authorized', to act for the Secretary. **** “19. Termination for the Convenience of the Government.— “(a) The performance of work under this contract may be terminated by the-Government in accordance with this-clause in whole, or from time to time in part whenever the Contracting Officer shall determine that such termination is in the best interests of the Government. Termination of work hereunder shall be-effected by delivery to the Contractor of a Notice of Termination specifying the-extent to which performance of work under this contract is terminated, and' the date upon which such termination becomes effective. * ***** “(f) The Contractor shall have the-right of appeal, under the clause entitled ‘Disputes’, from any determination of' the amount due to the Contractor made-by the Contracting Officer under paragraphs (c) or (e) above, except that if the Contractor has failed to submit a claim within the time provided in paragraph (c) above and has failed to request extension of such time, the Contractor shall have no such right of appeal. In any case where the Contracting Officer has made a determination of the amount, due under paragraph (c) or (e) above,. the Government shall pay to the Contractor the following: (i) if there is no right of appeal hereunder or if no timely appeal has been taken, the amount so determined by the Contracting Officer, or (ii) if an appeal has been taken, the amount finally determined on such appeal; and such determination being final and conclusive upon the Contractor and the Government. •»*•» Appendix II The Armed Services Procurement Regulations and the joint directive of the Secretaries of the Army, Navy, and the Air Force of May 1, 1949, containing the Charter and the Rules for the Armed Services Board of Contract Appeals contain the following pertinent provisions: “4. The Armed Services Board of Contract Appeals is hereby designated and shall act as the authorized representative of the respective Secretaries of the Army, Navy, and Air Force in hearing, considering and determining as fully and finally as might each of the Secretaries (a) appeals by contractors from decisions on disputed questions by contracting officers or their authorized representatives or by other authorities pursuant to the provision of Armed Services contracts requiring the decision of appeals by the head of a department of the Armed Services or his duly authorized representative or board * When an appeal is taken pursuant to a dispute clause in a contract which limits appeals to disputes concerning •questions of fact, the Board may nevertheless in its discretion hear, •consider, and decide all questions of Jaw necessary for the complete adjudication of the issue * * . “5. When a contract requires the Secretary of a Department of the Armed Services, personally, to render a decision on the matter in dispute, the Armed Services Board of Contract Appeals, in accordance with the procedure set forth in paragraph * *, shall make findings of fact and recommendation to the Secretary of the Department with respect thereto.” . Lowell O. West Lumber Sales v. United States, D.C.N.D.Cal.S.D.1958, 160 F.Supp. 429. . See Appendix H. . See Streich v. General Motors Corporation, 1955, 5 Ill.App.2d 485, 126 N.E.2d 389, 391-392, cited by the district court, 160 F.Supp. at page 431, where the language specifically limited the obligation to pay only for materials or items contained in a call. . Section 321, Title 41 U.S.O.A. “Limitation on pleading contract — provisions relating to finality; standards of review. “No provision of any contract entered into by the United States, relating to the finality or conelusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, sliall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence. May 11, 1954, c. 199, § 1, 68 Stat. 81.” Sec. 322, Title 41 U.S.C.A. “Contract-provisions making decisions final on questions of law. “No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board. May 11, 1954, c. 199, § 2, 68 Stat. 81.” . § 1346. United States as defendant. “(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: “(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” . 28 U.S.C. § 2406. “Credits in actions by United States; prior disallowance. “In an action by the United States against an individual, evidence supporting the defendant’s claim for a credit shall not be admitted unless he first proves that such claim has been disallowed, in whole or in part, by the General Accounting Office, or that he has, at the time of the trial, obtained possession of vouchers not previously procurable and has been prevented from presenting such claim to the General Accounting Office by absence from the United States or unavoidable accident. June 25, 1948, c. 646, 62 Stat. 972.” Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Al MANCUSO, Petitioner-Appellee, v. David R. HARRIS, Superintendent of Greenhaven Correctional Facility and Robert Abrams, New York State Attorney General, Respondents-Appellants. No. 755, Docket 81-2283. United States Court of Appeals, Second Circuit. Argued March 4, 1982. Decided April 13, 1982. Cynthia Kean, Asst. Dist. Atty. (Elizabeth Holtzman, Dist. Atty., Kings County, of counsel) for respondents-appellants. Steven Lloyd Barrett, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel, for petitioner-appellee. Before KAUFMAN and PIERCE, Circuit Judges and HAIGHT, District Judge. Hon. Charles S. Haight, Jr., United States District Judge for the Southern District of New York, sitting by designation. PIERCE, Circuit Judge: Petitioner A1 Mancuso and co-defendants, Dominick Vaccarino and Ronnie Spagna, were indicted for the killing of James Coppola during the course of a burglary of the victim’s home on June 28, 1975. Mancuso and Spagna were convicted of felony murder (N.Y.Penal Law § 125.25(3)) on May 11, 1978, after a trial before Justice Joseph R. Corso and a jury in the State Supreme Court for the County of Kings. Petitioner was sentenced to a prison term of 25 years to life. Both Mancuso and Spagna appealed their convictions to the Appellate Division, Second Department, which unanimously affirmed on September 17, 1979. 71 A.D.2d 994, 420 N.Y.S.2d 282. On December 4, 1979, leave to appeal to the New York Court of Appeals was denied. On May 5, 1980, petitioner filed the instant application for a writ of habeas corpus. He alleged that the trial court judge committed error of constitutional dimension in charging the jury, inter alia, that “Everyone is presumed to intend the natural consequences of his act and unless the act is done under circumstances or conditions that might preclude the existence of such intent, you, the jury, have to find, have a right to find the requisite intent from the proven actions of an individual.” On July 23, 1981, Judge Platt adopted a Report and Recommendation of U.S. Magistrate John L. Caden which found that the above language impermissibly shifted the burden of proof to the defendant, and ordered the State to either retry the petitioner within ninety days or release him. The State of New York appeals from that order. At the appellee’s trial in the state court the prosecution relied mainly upon the testimony of alleged co-defendant Dominick Vaccarino, Dominick Vaccarino’s common-law wife, Susan Heller, and his brother, Carl Vaccarino. Dominick Vaccarino testified for the prosecution in return for a promise by the District Attorney that he would recommend to the court acceptance of a plea of guilty to manslaughter in the second degree and imposition of a sentence of five years probation in satisfaction of the count which charged felony murder. At the time of the trial, Carl Vaccarino was incarcerated in New Jersey after a conviction for robbery in that state. He testified herein that the District Attorney had promised to inform the New Jersey authorities of his cooperation, which he hoped would help him obtain an early release on parole. Several other prosecution witnesses provided testimony as to background information and details surrounding the burglary and killing which took place on June 28, 1975. At the trial, Dominick Vaccarino testified that he first met one Frankie Tortorella through his brother, Carl, in mid-June of 1975; that about one week later Tortorella approached Dominick and Susan Heller about the possibility of burglarizing the home of Susan’s uncle, James Coppola; and that neither Dominick nor Susan agreed to participate. He testified further than on June 28, 1975, he saw Tortorella, who told him that he would be sending two men to burglarize Coppola’s house. According to Dominick, defendant Mancuso and his co-defendant, Spagna, came to his home later that evening and stated that Frankie had sent them, and that they had just driven past Coppola’s house, saw that it was all dark, and thought that it would be a good time to burglarize the house. Dominick Vaccarino agreed to become involved, and left his home with Mancuso and Spagna in a green Gran Torino automobile. Dominick testified to the events which then transpired. He told the jury that he, Mancuso, and Spagna drove to Coppola’s house and parked the car at the corner of the block. Mancuso and Spagna left the car after telling Vaccarino to wait in the driver’s seat. However, Vaccarino left the car, walked down the block, and hid in the bushes directly across the street from Coppola’s house. From there he observed Spagna go to the front door of the house and ring the doorbell while Mancuso hid in the bushes, wearing a ski mask. He testified that Coppola came to the door; Spagna spoke to him, and then he saw the two of them engage in a struggle at the door. Meanwhile, Mancuso ran past them and into the house. In the course of the struggle between Spagna and Coppola, the glass in the storm door broke and Spagna pulled out a pistol and fired one shot into the wall of the house. This bullet apparently did not hit Coppola. Spagna then turned and ran back to the car. At that point, Mancuso, still inside the house, fired at Coppola several times while running toward the door to leave, thereby apparently killing Coppola. When Mancuso reached the ear, he and Spagna drove away. Vaccarino also fled and hitchhiked home. He testified that after he arrived at home Tortorella came to see him and they went to a bar in Queens where he saw Mancuso who told Dominick that if he told anyone what had happened he, Susan, and the baby “would be next.” Susan Heller and Carl Vaccarino corroborated details of Dominick Vaccarino’s testimony. Neither Mancuso nor Spagna testified at trial. Spagna presented an alibi defense. Mancuso sought to discredit the prosecution’s witnesses, as to their motivation to testify, and with respect to the accuracy of various details of their testimony. Mancuso also presented the testimony of his close friend Frankie Tortorella, who denied that he had seen Vaccarino on June 28, 1975, or that he had been involved in any way in burglarizing Coppola’s home, or in attempting to induce Mancuso to participate in such a burglary. I. Collateral Estoppel After exhausting his remedies in the state courts, petitioner’s co-defendant, Spagna, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. He argued that Justice Corso’s charge with regard to intent was in violation of the constitutional standard set forth by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Judge Platt granted the writ on September 18,1980. The State filed a notice of appeal from that order (Docket No. 80-2278), but never perfected the appeal and it was dismissed by the Clerk of this Court on November 19, 1980. Spagna pleaded guilty to reduced charges in the state court. Appellee argues that since the Supreme Court held in Parklane Hosiery v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), that collateral estoppel may be used offensively to prevent a defendant from relitigating issues previously litigated and lost against another plaintiff and since the dispositive issue in this case is identical to that in Spagna’s, Judge Platt’s earlier decision collaterally estops the State from litigating this appeal. This argument is without merit. The Court’s decision in Parklane Hosiery does not mandate the application of collateral estoppel whenever a party has had a previous opportunity to litigate an issue. On the contrary, in that case the Court stated only that it had determined not to preclude the offensive use of collateral estoppel and that trial courts would be accorded “broad discretion to determine when it should be applied.” 439 U.S. at 331, 99 S.Ct. at 651. It seems obvious that the principle should be applied with care. Further, in Standefer v. United States, 447 U.S. 10, 24-25, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980), the Supreme Court pointed out that although there would be no sound reason to burden the courts with repetitive litigation in civil cases, which are at bottom private disputes between private litigants seeking to enforce private rights, cases involving enforcement of the criminal law present “ ‘competing policy considerations’ that outweigh the economy concerns that undergrid the estoppel doctrine.” Although a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 initiates a civil proceeding in which the State is not bound by the strictures imposed upon it as prosecutor in a criminal proceeding, it is unquestionable that the federal court’s review of the petition implicates the public interest in the enforcement of the criminal law in the state courts. While it is possible that a situation may arise in which it would be appropriate to apply principles of non-mutual collateral estoppel to prohibit the State from resisting an application for a writ of habeas corpus, this is not that case. In a criminal trial before a jury, we may not assume that jury instructions have an identical impact with respect to any two or more defendants. Indeed, the state trial judge herein properly instructed the jury to “[b]ear in mind that in this one trial we have two defendants, but two separate and distinct cases are being tried here. The case of each defendant must stand on its own foundation.” In addition, throughout the charge the trial judge referred to the jury’s duty to make findings with respect to “the defendants, either or both of them.” Further, Spagna and Mancuso played different roles in the crime for which they were convicted. It also cannot be assumed that the State has an equal incentive to vigorously litigate claims for habeas corpus brought by each of several co-defendants. Differences in culpability and in willingness to plead guilty no doubt influence the State’s decisions in this regard. In Olegario v. United States, 629 F.2d 204, 215-216 (2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981), this Court held, in another context, that a government officer, who is accorded wide discretion in determining when to file cases or pursue appeals, should not be required to seek review of cases that would not otherwise be appealed in order to prevent an adverse decision from having collateral estoppel effect in later cases. The discretionary decisions of the district attorney, which clearly are determined by a variety of factors, some of which are unrelated to the legal issues in a case, must be accorded such latitude. For these reasons the State is not collaterally estopped from pursuing the instant appeal. II. The Alleged Sandstrom Violation In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Supreme Court held that a charge to a jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” relieved the State of the burden of proof beyond a reasonable doubt on the critical question of the defendant’s state of mind. The charge was therefore found to be constitutionally defective. In Sandstrom the trial judge had given this instruction to the jury without explanation or qualification. The jury was not told that, rather than simply presuming intent from the doing of a particular act, they should consider the other evidence in the case and the circumstances surrounding the incident in their effort to determine whether the intent necessary to convict for the crime charged was present. The instruction given in Sandstrom was particularly egregious since the defendant had admitted to killing the victim but contended that due to a personality disorder aggravated by alcohol consumption he did not have the intent required to support a finding of “ ‘deliberate homicide.’ ” 442 U.S. at 512, 99 S.Ct. at 2453. The charge given in this case was not nearly so peremptory as that delivered in Sandstrom. Here the language, “[ejveryone is presumed to intend the natural consequences of his act ... ”, was both preceded and followed by language that served to qualify it appropriately. The broader text read: Under the definition of felony murder, intent to kill need not be established. But, the intent to commit the underlying felony must be established. A word about intent. Intent is a secret and silent mental operation not visible to the human eye. The way intent is determined is from the actions and the conduct of the individual whose intent is the subject of your inquiry. Everyone is presumed to intend the natural consequences of his act and unless the act is done under circumstances or conditions that might preclude the existence of such an intent, you, the jury, have to find, have the right to find the requisite intent from the proven actions of an individual. If you find from the actions of one of several participants an intent to commit a certain crime, then anyone who was a co-principal or active participant in the crime also had such intent. The qualifying “unless” clause used here is virtually identical to that which this Court found to be both ameliorative and free of any improper burden-shifting effect in Washington v. Harris, 650 F.2d 447, 453 (2d Cir. 1981). Further, the crime charged against Mancuso in this case was felony murder. Thus, the prosecution was not required to prove intent to kill. Rather, it satisfied its burden if it proved beyond a reasonable doubt all of the essential elements of the underlying burglary. Thus, when in the context of his extensive instructions to the jury as to the elements of a burglary, the trial judge herein stated that “[according to the law, a person intends to commit a crime when his conscious aim or objective is to commit the crime,” he instructed the jury as to intent, without charging a presumption, in the particular context in which the issue was presented. In Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the Supreme Court stated that a single jury instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge,” 414 U.S. at 146, 94 S.Ct. at 400, and that “[t]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. As in our recent decision in Nelson v. Scully, 672 F.2d 266 (2d Cir. 1982), we find that in this case the impact of the presumption language, in the context of the entire charge, was merely to instruct the jury as to a permissible method for reaching a conclusion as to whether Mancuso had the intent required to commit the burglary upon which the felony murder charge was predicated. When viewed in this light, it is apparent that “there was [no] significant possibility that harm was done.” Id. at 272. In reaching this conclusion we also have taken into account the circumstances and extent to which Mancuso’s intent was an issue at his trial for felony murder. See Washington v. Harris, supra, 650 F.2d at 453. In Sandstrom and Nelson, the existence of the specific intent to kill was the principal issue before the jury. Here Mancuso denied any involvement in either the burglary or the murder. His defense focused on an attempt to discredit the witnesses who testified to his involvement in the burglary. Therefore, once the jury decided, as it clearly did, to accept the testimony of those witnesses with regard to Mancuso’s involvement, and found that he was present at the scene of the crime, as charged in the indictment herein, the one challenged instruction as to intent, in the context of a lengthy, and otherwise unassailable charge, created no “significant possibility that harm was done.” Nelson, supra, at 272. We find that the charge, when viewed as a whole, made it quite clear to the jury that it was to consider all of the evidence in the case in deciding whether the defendant possessed the intent necessary to commit the crime of burglary. The judgment of the District Court is reversed and the petition is dismissed. . The second count of Indictment No. 3414/76 charged Mancuso with causing the death of James M. Coppola in the course of a burglary committed on June 28, 1975, while “acting in concert with other persons actually present.” Spagna and Dominick Vaccarino were charged with the same crime in Count 1 of Indictment No. 3415/76. . Petitioner objected to this charge at trial and challenged its constitutionality in his appeal to the Appellate Division. In affirming the convictions the Appellate Division stated that it was “aware of the holding in Sandstrom v. Montana,” 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), but that it found the “charge on presumed intent was harmless.” People v. Spagna and Mancuso, 71 A.D.2d 994, 420 N.Y. S.2d 282 (2d Dep’t 1979). Therefore, the exhaustion requirement has been met. See Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981). . Tortorella was charged with criminal solicitation and conspiracy in connection with the killing of Coppola. He was tried separately and acquitted. . Mancuso argued in the district court that the State was collaterally estopped from litigating the constitutionality of the jury charge. In granting the writ of habeas corpus in Spagna’s case, Judge Platt adopted a lengthy Report and Recommendation submitted by Magistrate A. Simon Chrein. In his Report Magistrate Chrein found that the jury instruction challenged by both Spagna and Mancuso could have been interpreted by a reasonable juror as “either requiring a conclusive presumption or as shifting the burden of persuasion upon the defendant, to prove lack of intent, both interpretations being constitutionally infirm.” In his Report in Mancuso’s case, Magistrate Caden did not specifically refer to the doctrine of collateral estoppel, but did state that his recommendation that the writ be granted was based on his adoption of the reasoning and conclusions reached by Magistrate Chrein in Spagna’s case. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_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. Ronald GRAHAM, Appellant, v. W. M. RIDDLE, Appellee. Ronald GRAHAM, Appellant, v. Jack DAVIS, Director, Virginia State Penitentiary, et al., Appellees. Ronald GRAHAM, Appellant, v. Rebecca PONDER, Administrator, Central State Hospital, et al., Appellees. Ronald GRAHAM, Appellant, v. Jack DAVIS and A. G. Robinson, Appellees. Ronald GRAHAM, Appellant, v. Jack DAVIS, W. M. Riddle, and Sergeant D. T. Scites, Appellees. Ronald GRAHAM, Appellant, v. Jack DAVIS, Director, et al., Appellees. Nos. 76-1584, 76-1587 to 76-1590 and 76-2216. United States Court of Appeals, Fourth Circuit. Argued Dec. 7, 1976. Decided April 21, 1977. Stuart W. Settle, Richmond, Va. (Coates & Comess, Richmond, Va., on brief), for appellant. Alan Katz, Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen., Richmond, Va., on brief), for appellees. Before WINTER and RUSSELL, Circuit Judges, and FIELD, Senior Circuit Judge. WINTER, Circuit Judge: Plaintiff, Ronald Graham, appeals from orders of the district court conditioning his right to file complaints in forma pauperis upon “good cause shown.” We affirm. I. Graham was and is an inmate of the Virginia state prison system. From December 1972 through April 1973, he filed six complaints with the district court, each pursuant to 42 U.S.C. § 1983. The complaints were repetitive; each dealt with a self-styled “food complaint”; and each was accompanied by a motion for leave to file in forma pauperis. The motions for leave to file in forma pauperis were routinely granted, although the complaints themselves were subsequently dismissed as frivolous. The sixth complaint was dismissed on April 12, 1973; and in dismissing it, the district court appended the following language to its order: Additionally, concluding that Graham has abused court process by the filing of successive, frivolous complaints, it is ADJUDGED and ORDERED that leave to file in forma pauperis shall be denied forthwith except upon good cause shown. If Mr. Graham wishes to continue filing at his present prolific rate, he must pay $15 for each complaint so filed. Graham v. Slayton, No. 195-73-R (E.D.Va. April 12, 1973). Relying on this ruling, the district court denied leave to file in forma pauperis six subsequent complaints tendered by Graham. Graham appeals from each denial. He does not argue the merits of the various complaints nor does he contest the finding that each was frivolous. Rather, he asserts that leave to file in forma pauperis cannot be conditioned upon the merits of the complaint tendered. In essence, he contends that the district court abused its discretion in issuing the order of April 12, 1973. II. We see no infirmity in the procedure adopted by the district court. The imposition of costs and fees is a matter of sound discretion. The enabling statute reads: (a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress. 28 U.S.C. § 1915(a) (emphasis added). Included within the district court’s discretion is the authority to deny cost-free filing when a petition is frivolous. Smart v. Heinze, 347 F.2d 114, 116-17 (9 Cir.), cert. denied, 382 U.S. 896, 86 S.Ct. 192, 15 L.Ed.2d 153 (1965); Loum v. Underwood, 262 F.2d 866, 867 (6 Cir. 1959); Caviness v. Somers, 235 F.2d 455, 456 (4 Cir. 1956). This authority flows from the essential policy behind the in forma pauperis statute: “[W]hile persons who are unable to pay costs or give security therefor should be allowed to prosecute or defend actions for the protection of their rights . . ., they should not be allowed under the cover of the statute to abuse the process of the court by prosecuting suits which are frivolous or malicious. As said by Judge Aldrich in O’Connell v. Mason, supra, 1 Cir., 132 F. 245, 247: ‘It is quite clear that Congress, while intending to extend to poor and meritorious suitors the privilege of having their wrongs redressed without the ordinary burdens of litigation, at the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they were not in accord, by subjecting them to vexatious and frivolous legal proceedings.’ ” . Caviness v. Somers, 235 F.2d 455, 456 (4 Cir. 1956), quoting from Fletcher v. Young, 222 F.2d 222, 224 (4 Cir.), cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802 (1955). In the instant case the district court did not abuse its discretion. It had experienced a plethora of frivolous, repetitive complaints. When it entered its order of April 12,1973, it had every reason to expect the pattern to continue, as indeed it did. The district court was not required to go through the formalities of granting leave to file, docketing the case and then dismissing on the merits, as authorized by 28 U.S.C. § 1915(d). It could properly follow the procedure of pre-filing review implicit in the discretionary authority vested in it by 28 U.S.C. § 1915(a). West v. Procunier, 452 F.2d 645, 646 (9 Cir. 1971). AFFIRMED. Of the six, five were complaints solely about food. The sixth, while concentrating on the quality of food served at the State Farm, also mentions deficiencies in clothing, recreation time and the regulation of correspondence, among others. The allegations with respect thereto are purely conclusory and thus we treat the sixth complaint as essentially a replica of its predecessors. If Graham in a new suit can allege a cause of action other than with respect to food, the order of the district court does not foreclose in forma pauperis filings. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp1_7-3-3	I	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 - commercial disputes". DALE BENZ, INC., CONTRACTORS, an Arizona Corporation, et al., Appellants, v. AMERICAN CASUALTY COMPANY, OF READING, PENNSYLVANIA, Appellee. No. 17464. United States Court of Appeals Ninth Circuit. Aug. 1, 1962. Cox & Cox, Simpson Cox, Phoenix, Ariz., Marion R. Smokeer, Newton Frishberg, Alfred S. Cox, of counsel, for appellants. Moore & Romley, Jarrill F. Kaplan, Phoenix, Ariz., for appellee. Before HAMLEY and BROWNING, Circuit Judges, and ROSS, District Judge. PER CURIAM. Appellee (hereinafter American) has filed a petition for rehearing in this case relating-to the award to Appellants (hereinafter Benz) by this Court on appeal the sum of $9,200.00 as attorneys’ fees for the proceedings in the trial court. In considering this petition we believe it is important to remember that the trial court did not award attorneys’ fees to Benz. On appeal Benz argued that it was entitled to attorneys’ fees. The record disclosed that American stipulated that L. J. Cox, attorney for Benz, would testify that $9,200.00 was a reasonable sum for attorneys’ fees. American did not introduce any testimony on this matter. We awarded $9,200.00 as attorneys’ fees for the proceedings in the trial court. Now American asserts that it was deprived of the opportunity to present any evidence on this matter, and the trial court was deprived of the opportunity to pass on the amount of attorneys’ fees. American was not deprived of the opportunity to present any evidence on this matter, but rather it stipulated that Cox would testify that $9,200.00 was a reasonable sum for attorneys’ fees. We do not understand how the trial court was deprived of the opportunity to pass on the amount of attorneys’ fees. American contends that it objected to any testimony on the issue of attorneys’ fees on the ground that Benz was not entitled to recover the same. Further, that the trial court did not rule on American’s objection at that time, but subsequently held that Benz was not entitled to recover attorneys’ fees, in effect striking Benz’s testimony in this regard as irrelevant. It is, of course, elementary that before a party can successfully contend that certain testimony should not be considered by this Court it is necessary that the party not only object to the admission of said evidence, but also, seek a ruling on its objection. Here, there is no showing that American asked for a ruling on its objection or obtained one. The fact that the trial court did not allow Benz attorneys’ fees does not mean that the court in effect struck Benz’s testimony in this regard. Nor does the failure of the lower court to allow attorney fees amount to a holding that Benz was' not entitled to attorney fees, as urged by American. Therefore, said testimony was before us for our consideration. We have examined American’s other grounds in support of its petition for rehearing and find them without merit. It is, therefore, Ordered, that the petition of American for rehearing is hereby denied. Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. David MILLER, Plaintiff-Appellee, v. Griffin B. BELL, Attorney General of the United States, William H. Webster, Director of the Federal Bureau of Investigation, and United States Department of Justice, Defendants-Appellants. No. 79-1210. United States Court of Appeals, Seventh Circuit. Argued May 13, 1981. Decided Oct. 1, 1981. Mark N. Mutterperl, Appellate Staff, Civ. Div., Dept, of Justice, Washington, D.C., for defendants-appellants. Robert M. Hodge, Chicago, 111., for plaintiff-appellee. Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and LARSON, Senior District Judge. Earl R. Larson, Senior Judge of the District of Minnesota, is sitting by designation. PER CURIAM. This appeal arises under the Freedom of Information Act, 5 U.S.C. § 552. The plaintiff David Miller (Miller) requested the Federal Bureau of Investigation (the FBI or the Bureau) and the Justice Department to provide him with all documents relating to his complaint to the FBI that someone had wiretapped his telephone. The FBI released some 54 pages of material to the plaintiff, but, pursuant to exemptions 7(C) and (D) of the Act, §§ 552(b)(7)(C) & (D), the Bureau excised the names of persons interviewed in connection with the investigation, third parties named in those interviews, and FBI agents who took part in the investigation. The plaintiff brought suit to compel disclosure of the excised information. The district court granted the plaintiff’s motion for summary judgment, and ordered the FBI to disclose all excised material. 483 F.Supp. 883. The issue presented by this appeal is whether the trial court erred when it found that exemptions 7(C) and (D) were not applicable to the excised names. I. As a threshold matter, the plaintiff challenges this court’s jurisdiction of this appeal, claiming that the district court’s order requiring the FBI to turn over the excised information is not a final order, and thus is not appealable. A disclosure order in a FOIA suit is injunctive in nature. It is granted pursuant to 5 U.S.C. § 552(a)(4)(B), which confers jurisdiction upon the district court, “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18, 20, 94 S.Ct. 1028, 1037, 1038, 39 L.Ed.2d 123 (1974). The courts of appeals have jurisdiction of appeals from interlocutory orders of the district court granting injunctions, pursuant to 28 U.S.C. § 1292(a). Thus we have jurisdiction of the present appeal regardless of whether other issues remain pending in the district court. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 979 & n.15 (3d Cir. 1981); cf. Theriault v. United States, 503 F.2d 390, 391 (9th Cir. 1974) (when release of documents under FOIA is the ultimate relief sought by party, an order compelling their release is final under doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). On September 8, 1973, David Miller, . . . made a complaint concerning a possible intrusion on his telephone. Investigation was conducted and it was determined that an Illinois Bell Telephone (IBT) repairman was at the site on August 24, 1973. This individual advised that while working on the line he hooked into the line to report a problem he was having with his vehicle. After making his call he returned the transmitting wires under the protective coverings. The wire was forwarded to the Federal Bureau of Investigation Laboratory which could not determine whether or not any additional marks were in the wire to those described as having been made by the repairman. In view of this no further investigation is contemplated by this office. II. Before turning to the Bureau’s specific assignments of error in the district court decision, a brief overview of the relevant statutory framework may be helpful. The purpose of the FOIA is to allow public access to official information unnecessarily shielded from public view, see EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). An agency must release information in its possession unless it falls within one of the nine statutory exemptions to the Act. In light of the policy favoring disclosure, however, those exemptions are to be narrowly construed. Theriault v. United States, 503 F.2d 390, 392 (9th Cir. 1974). The Act provides that the district court is to make a de novo review of the administrative claim of exemption, and that the burden of justifying the decision to withhold is on the agency. 5 U.S.C. § 552(a)(4)(B). In light of the circumstances of this suit, it is also well to note that it is not the purpose of the Act to benefit private litigants, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1512 n.10, 44 L.Ed.2d 29 (1975), by serving as an adjunct or supplement to the discovery provisions of the Federal Rules of Civil Procedure, Nix v. United States, 572 F.2d 998, 1003 (4th Cir. 1978). In 1974, Congress amended the FOIA provisions governing the role of a reviewing court in considering claimed exemptions. Prior to 1974 investigatory files compiled for law enforcement purposes were deemed entirely exempt from disclosure. See, e. g., Center for National Policy Review on Race & Urban Issues v. Weinberger, 502 F.2d 370, 372 (D.C.Cir.1974). The 1974 amendments narrowed this broad grant of exemption by limiting its application to particular types of information within the investigatory file. Congress was extremely concerned, however, that personal privacy and confidentiality be preserved by means of exemptions 7(C) & (D), those at issue in this suit. Senator Hart, who introduced the amendment, discussed at length the purpose and operation of these exemptions in a Memorandum Letter contained in the legislative history of the amendments. He stated: A question has been raised as to whether my amendment might hinder the [FBI] in the performance of its investigatory duties. The Bureau stresses the need for confidentiality in its investigations. I agree completely.... . . . My amendment would not hinder the Bureau’s performance in any way. . . . [The amendment] was carefully drawn to preserve every conceivable reason the Bureau might have for resisting disclosure of material in an investigative file: If informants’ anonymity — whether paid informers or citizen volunteers— would be threatened, there would be no disclosure; If disclosure is an unwarranted invasion of privacy, there would be no disclosure . . . .; If in any other way the Bureau’s ability to conduct such investigation was threatened, there would be no disclosure. 120 Cong.Rec. S17040 (1974), reprinted in Subeomm. on Govt. Information and Individual Rights, House Comm, on Govt. Operations. 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and other Documents (Joint Comm. Print) 351 (hereinafter cited as FOIA Source Book). In relation to the confidential information and source provisions of exemption 7(D) Senator Hart was specific in identifying precisely the burden of justification for withholding that the exemption imposed upon the Bureau: [T]he agency not only can withhold information which would disclose the identity of a confidential source but also can provide blanket protection for any information supplied by a confidential source. The President is therefore mistaken in his statement that the FBI must prove that disclosure would reveal an informer’s identity; all the FBI has to do is to state the information was furnished by a confidential source and it is exempt. 120 Cong.Rec. S36871 (Remarks of Sen. Hart) (1974), reprinted in FOIA Source Book at 451. See Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980). A. Exemption (b)(7)(D). We first turn our attention to (b)(7)(D), which exempts investigatory records compiled for law enforcement purposes to the extent that their release would “disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, . . . confidential information furnished only by the confidential source.” The district court noted that this exemption is available to an agency either if the source of the information is given an express assurance of confidentiality, or if one could reasonably infer such an assurance from the circumstances of the interview. It concluded that the Government had failed to carry its burden of proof on its claim that the interviews at issue were given with such implied assurances of confidentiality. The trial court expressed two grounds for its conclusion. First, it noted an affidavit from one interviewee which specified that no express assurances of confidentiality were made, and that she did not infer such a pledge of confidentiality. Second, the court held that the Bureau had failed to show that this was a case in which an interviewee might have some reason for desiring confidentiality. The Bureau contends that the trial court erred by imposing a higher standard of proof upon the FBI than that intended by the legislature, and the standard established by this court in Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778. In Scherer, this court examined FBI claims of exemption under §§ 7(C) & (D). We concluded that FBI affidavits which “comprehensively set forth the exemptions upon which [the] agency had relied when it excised portions of its file . . . and set forth the reasons underlying their use,” were sufficient to sustain FBI claims of exemption. 584 F.2d at 175, 176. See Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977). We find that this standard is in keeping with the purpose of the Act as expressed in its legislative history, supra. Special Agent King’s lengthy and detailed affidavit of October 28, 1977, adequately meets this standard. It identifies each type of excision and relates them in particular detail to the relevant claimed exemption. The affidavit also sets forth the reasons of the FBI in relying on the claimed exemptions, and articulately expresses the concern of the Bureau that such material remain confidential in order to preserve the Bureau’s ability to elicit continued public cooperation through such interviews. See Scherer, 584 F.2d at 176; Maroscia, 569 F.2d at 1002. The legislative history makes it clear that the drafters of the 1974 amendments were fully cognizant of such dangers, and did not seek to impose a heavy burden of justification, see remarks of Senator Hart, supra. We find that the FBI’s affidavit demonstrates that the FBI responded to Miller’s request in a responsible and conscientious manner. It thus meets the Scherer standard, and is sufficient to satisfy the burden of proof imposed upon the Bureau by § 552(a)(4)(B). Terkel v. Kelly, 599 F.2d 214, 217 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980). Unless there is evidence to the contrary in the record, we believe such promises of confidentiality are inherently implicit in FBI interviews conducted pursuant to a criminal investigation. This is necessary not only to protect the individual interviewee, but also to insure the continuing efficacy of FBI criminal investigation. We are unpersuaded by the district court’s rationale for its contrary disposition. The court relied on the affidavit of Mrs. Kenneth Triphan (Triphan), which stated that she did not receive express assurances of confidentiality, nor was she led to believe that the information she gave was taken on an implied promise of confidentiality. The trial court apparently found this subjective evaluation of one interviewee sufficient to infer that the Bureau did not imply confidentiality to any of the interviewees. While we agree that Triphan has waived whatever confidentiality attached to the contents of her own interview, and that the Bureau must therefore disclose its contents to Miller, unless they are otherwise exempt under § 7(C), we cannot draw the inference that this indicates that manifestations implying confidentiality were not made to other interviewees, or indeed to Triphan herself on an objective basis. Indeed, the fact that among all the interviewees, only Triphan has waived the confidentiality of her interview is supportive of rather the precisely contrary view— that the other interviewees did infer and rely upon assurances of confidentiality. See Nix v. United States, 572 F.2d 998, 1004 (4th Cir. 1978). Nor are we convinced by the district court’s assertion that this is not a case in which the interviewees might have a reason for desiring confidentiality. It is true that the interviewees are not here in a situation where revelation of their names is likely to subject them to employer retaliation, see, e. g., Wellman Industries, Inc. v. NLRB, 490 F.2d 427, 431 (4th Cir. 1974), cert. denied, 419 U.S. 834, 95 S.Ct. 61, 42 L.Ed.2d 61 (employer sought release of employee interviews), or danger of revenge through physical reprisal, see, e. g., Nix v. United States, 572 F.2d 998, 1004 (4th Cir. 1978) (release of names of guards and prisoners who made statements in regard to a prisoner’s brutality charge). A strong potential for harassment and invasion of privacy of the individual interviewees does, however, remain a real possibility here. Miller stated in his original complaint to the FBI that he is “litigatous [sic] and a complainer,” and identified himself to the investigating agent as the plaintiff in numerous lawsuits. Miller also recorded the license plate number of the agent’s personal automobile at that time, stating that he did so as a matter of course. An internal FBI note released to Miller as part of the material he requested further indicates that he “introduces himself at Township meetings to Sergeant-at-Arms as that officer will most likely bodily remove him from the meeting.” Miller has indicated, see note 3 supra, that he seeks the deleted names to pursue civil action, and to enlist their cooperation and support. While we applaud the willingness of the interviewees to “get involved,” in crime prevention and investigation by speaking to FBI agents confidentially, we can also appreciate that some might be reluctant to enlist, or be drafted, in Miller’s anti-government crusade. While they are certainly free to waive their right to confidentiality and step forward, as Triphan has done, it is not the role of the FBI to suffer them to do so, regardless of the possibly beneficent ultimate purposes of Miller’s suit. See Nix, 572 F.2d at 1003 (the right of a FOIA plaintiff to obtain information is not enhanced by his needs as a private civil-rights litigant). Furthermore, in light of Miller’s self-proclaimed litigiousness, some interviewees might be worried that if Miller disagrees with their statements they might find themselves defendants in expensive civil litigation. As we noted above, we believe it is essential to the continued ability of the FBI to conduct effective criminal investigation that witnesses feel free to fulfill their obligations as citizens without fear of exposing themselves to such intrusion or harassment. We therefore find that the trial court erred in concluding that exemption 7(D) did not shield the names of the interviewees and third parties mentioned in the interviews from disclosure, with, as we noted above, the exception of the Triphan interview, which alone must be disclosed without excision of the name of the interviewee. We now turn our attention to exemption 7(C) to determine whether the court ruled properly that the other excised names were not protected by its strictures. B. Exemption (b)(7)(C). In analyzing the 7(C) exemption, which provides for exemption from disclosure of “investigatory records compiled for law enforcement purposes, ... to the extent that production of such records would . . . constitute an unwarranted invasion of personal privacy,” the trial court adopted the balancing test formulated in Dept. of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). In Rose, the Supreme Court held that exemption (b)(6) of the POIA, “require[s] a balancing of the individual’s right to privacy against the bar sic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’ ” 425 U.S. at 372, 96 S.Ct. at 1604. The trial court recognized that FBI agents have a privacy interest in withholding their names from public disclosure in connection with a criminal investigation. It concluded, however, that since there was no danger to the agents on the facts of this particular case, but rather only an abstract potential for harassment and annoyance and some possibility that future undercover investigations could be jeopardized, such a privacy interest was therefore minimal. In balancing these potential invasions against the public interest it found in disclosure of the excised names, the trial court concluded: [Ojnce we have found a public interest in disclosure, and the government has not pointed to any circumstance peculiar to this case which indicates greater potential for harassment, annoyance, or the compromising of undercover assignments than would be present in every case, we shall resolve the balancing test in favor of disclosure.... In weighing the public interest in disclosure against the privacy interests, we conclude that the government has not satisfied its burden and that disclosure here will not constitute an “unwarranted” invasion of personal privacy. Defendants must release the names of FBI agents withheld. . . . Mem.Op. at 9 (citations omitted). The FBI contends that the trial court erred, first by weighing too lightly the asserted privacy interests of the FBI agents, and second, by according too substantial a weight to the purported public interest in disclosure. We will turn our attention to each seriatim, and then to the manner in which the district court balanced them one against the other. 1. Privacy Interests of the FBI Agents The district court- concluded that FBI agents must have a privacy interest peculiar to the facts of a given case before those interests are serious enough to warrant disclosure. We are persuaded that the court erred by seeking such a particular interest, and that the King affidavit sets forth privacy considerations sufficient to establish that FBI agents have not insubstantial privacy interests whenever disclosure is sought of records of a criminal investigation. In identifying those privacy concerns, King’s affidavit stated: The privacy consideration is to protect these FBI employees, as individuals, from unnecessary questioning and intrusion into their private lives by members of the public. Additionally, FBI Agents are charged with the responsibility of investigating all matters within the jurisdiction of the FBI. As such, an Agent may investigate applicant matters for a period of time, followed by assignment to strictly criminal or national security matters. These latter assignments may even involve serving in an undercover capacity. To release to plaintiff the identities of all FBI agents involved in the investigation, regardless of their place of assignment or degree of involvement, must be considered a release to the public at large. Such wholesale release, without giving consideration to the current investigative assignments of the FBI Agents involved, would unnecessarily disclose their identities, serve no useful function to plaintiff, and could possibly jeopardize the current, and unknown to affiant, investigative activity of these Agents. It is noted that FBI Agents come into contact with individuals from all strata of society. They conduct searches and make arrests, both of which constitute reasonable, but nonetheless serious, intrusions into peoples’ lives. Many of these people carry grudges which last for years and seek any excuse to harass the responsible Agent. King Affidavit at 8-9. We find that the FBI has thus met its burden of demonstrating the existence of substantial and legitimate privacy concerns in the names of agents conducting a criminal investigation. As the Court of Appeals for the Fourth Circuit remarked in Nix, 572 F.2d at 1006, [o]ne who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives. We believe these privacy interests are serious and substantial, and absent a countervailing showing of substantial public interest in disclosure, merit the protection of exemption 7(C). Furthermore, we question the district court’s finding that no special hazard of harassment or annoyance exists in this case in light of Miller’s self-proclaimed contentiousness, see supra. It is not necessary that harassment rise to the level of endangering physical safety before the protections of 7(C) can be invoked. See Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); Nix, 572 F.2d at 1006 n.8; Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1978). 2. The Public Interest in Disclosure The trial court identified two types of public interests which it believed disclosure of the names of the participating agents would further: first, “with complete disclosure, plaintiff would be able to determine whether the FBI’s investigation of the illegal wiretap was complete and adequate”; and, second, that if the release of the names of FBI agents might aid the plaintiff in bringing a suit under 18 U.S.C. § 2520, note 3 supra, then their release would benefit a public interest. The Bureau contends the court erred by overvaluing both of these asserted benefits. As to the first of the asserted public interests, that Miller would use the information to serve as a watchdog over the adequacy and completeness of an FBI investigation, we are absolutely unpersuaded by the reasoning of the trial court. As a preliminary matter, we note that this justification would apparently apply to every FBI criminal investigation, severely vitiating the privacy and confidentiality provisions of exemptions 7(C) and (D). We further find the record demonstrates that this is not a ease of sufficient public importance to warrant such a probe of the FBI’s efficiency. The plaintiff’s broad unsupported hints of a government coverup or undercover surveillance fly in the face of the substance of the disclosed documents which reveal this case as one of consequence to only one individual. There is no allegation of wrongdoing by high-ranking government officials or indeed by any FBI personnel to support any public interest in any further probe into the thoroughness of the instant investigation. Cf. Congressional News Syndicate v. Dept. of Justice, 438 F.Supp. 538, 544 (D.D.C.1977) (Watergate-related investigation). In the absence of such a showing of special public interest in testing the thoroughness of an investigation, we find it of little weight. We further note that, as the plaintiff concedes, the substance of the information in the FBI files has been exposed in its entirety, and only the names of the FBI agents deleted. In this respect the Bureau has followed the directive of this court that only that precise information as to which confidentiality is claimed may be withheld. Terkel v. Kelly, 599 F.2d at 1217-18. The documents thus reveal the entire course of the investigation and the facts it uncovered. This information should be sufficient to permit the plaintiff to evaluate the thoroughness of the investigation. We find any public interest in pursuing the completeness and adequacy of the investigation beyond this point to be minimal in the extreme. We believe that the trial court similarly overvalued the public interest to be vindicated by the plaintiff’s maintenance of a private lawsuit. The court noted that a mere private interest in maintaining such a suit would not suffice, but concluded that here the private litigant’s interest in such a suit would overlap that of the public, and stated, “Just as the vindication of constitutional rights by private litigants in § 1983 actions serves the public interest, the vindication of important statutory rights such as those embodied in 18 U.S.C. § 2520 also serve the public interest.” Mem.Op. at 7-8. As we noted above, however, the FOIA was not enacted for the benefit of private litigants, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1512 n.10, 44 L.Ed.2d 29 (1975). The Nix court rejected a similar argument in a case in which the plaintiff, a prisoner, had filed an FOIA suit to discover documents relating to his alleged mistreatment by prison guards. He had also filed a suit, apparently under 42 U.S.C. § 1983, claiming that the alleged mistreatment violated his civil rights. In rejecting the argument that this created a public interest sufficient to override the guards’ right to privacy, the court concluded: As this court observed in Deering Milliken [v. Irving,], 548 F.2d [1131 (4th Cir. 1977)] at 1134-35, FOIA’s purpose is to inform the public about the action of government agencies. It was not designed to supplement the rules of civil discovery. Thus, the right of Nix to obtain information is neither enhanced nor diminished because of his needs as a litigant, but is to be measured by the right of the public to obtain the same information. 572 F.2d at 1003. We find this analysis persuasive and applicable a fortiori to this case in which no civil suit has yet been filed, and the rights assertedly violated do not rise to a constitutional level, but where the plaintiff has merely stated that he hopes to obtain information that will aid him in bringing suit. Were this the test for determining the existence of a public interest, every FOIA claimant against the FBI could override the exemption of § 7(C) by the simple expedient of claiming that he hoped to uncover violations of constitutional or statutory rights. Such a test is rife with the potential for abuse, and does not comport with the protective legislative intent embodied in the exemptions of section seven of the FOIA. 3. Balancing In light of our conclusions above that the agents’ interest in privacy is substantial and the public interest in disclosure here is slight, we reverse the trial court’s conclusion that exemption 7(C) is inapplicable. We also find that the court erred by failing to consider the substantial public interest in maintaining the integrity of future FBI undercover investigations served by the preservation of the privacy of agents’ names, which we believe further militates in favor of nondisclosure. 4. Privacy Interests and Third Parties In light of our holding above that the names of interviewees and third parties are protected under exemption 7(D), we need not reach the question whether they are also protected by exemption 7(C). The question remains, however, whether third party names mentioned in the Triphan interview, as to which § 7(D) confidentiality was waived, are disclosable or protected under § 7(C). As we noted above, a real potential for harassment and intrusion exists in this case. This could erode the privacy of individuals unknowingly named by an interviewee, such as Triphan, who does not himself or herself desire confidentiality. Revelation to the public at large of the names of such third parties might also stigmatize them as connected with an FBI criminal investigation. Release of their names might not only have these individualized deleterious effects, but also has the potential to lessen public confidence in the integrity of FBI criminal investigations. We therefore find that third parties do have a substantial privacy interest in nondisclosure. In light of our determination above that the public interest in disclosure here is minimal, under the Rose balancing test we hold that the third parties’ privacy interest outweighs any public interest in disclosure, and the names of third parties mentioned in any interview, including the Triphan interview, are protected by exemption 7(C), and need not be disclosed. III. Accordingly, the order of the district court is reversed, except as to the affidavit of Mrs. Kenneth Triphan, which must be released to the plaintiff in its entirety without excisions except for the names of FBI agents and third parties, which are exempt under § 7(C). The appellee shall bear the costs of this appeal. AFFIRMED IN PART; REVERSED IN PART. . The FBI reported the results of its investigation to the United States Attorney by the following letter dated November 29, 1973: . At the time this appeal was taken issues remained before the District Court with respect to disclosure of letters to the FBI from Senators Percy and Stevenson and Congressman Erlenborn, and of attorney’s fees. The letters were disclosed in the entirety following in camera review by the district court. The attorney’s fees issue has also been disposed of below, and is the subject of a separate appeal to this court. . At oral argument counsel for the plaintiff stated, “The reason Dr. Miller wants to have the names is so he can conduct an investigation to find out if those persons have any knowledge upon which he can enforce his rights under 18 U.S.C. § 2520 [the anti-wiretapping statute]." Similarly the plaintiff’s brief contends that he wishes to enlist the support and cooperation of those whose names have been excised in his effort to discover governmental wrongdoing. . The district court properly noted that privacy interests are afforded more protection by (b)(7)(C) than by (b)(6), which requires disclosure unless the invasion of privacy would be “clearly” unwarranted. See Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 n.7 (4th Cir. 1977). . See note 1 supra. 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_issue_7	D	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. STEINER et al., doing business as CUMBERLAND BATTERY MANUFACTURING CO., v. MITCHELL, SECRETARY OF LABOR. No. 22. Argued November 16, 1955. Decided January 30, 1956. Cecil Sims argued the cause for petitioners. With him on the brief was Louis Leftwich, Jr. Bessie Margolin argued the cause for respondent. With her on the brief were Solicitor General Sobeloff, Ralph S. Spritzer, Stuart Rothman and Sylvia S. Ellison. Mr. Chief Justice Warren delivered the opinion of the Court. This case raises an issue of coverage under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947, with respect to work performed before or after the direct or productive labor for which the worker is primarily paid. The precise question is whether workers in a battery plant must be paid as a part of their “principal” activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employer to provide, or whether these activities are “preliminary” or “postliminary” within the meaning of the Portal-to-Portal Act and, therefore, not to be included in measuring the work time for which compensation is required under the Fair Labor Standards Act. The Secretary of Labor, contending that these activities are so covered, brought this action in the United States District Court for the Middle District of Tennessee to enjoin petitioners from violating the overtime and record-keeping requirements of Sections 7 and 11 (c) of the Fair Labor Standards Act of 1938, as amended, in the employment of production workers, and from violating Section 15 (a)(1) of the Act by making interstate shipments of the goods produced by such workers. The District Court gave judgment for the plaintiff, and the Court of Appeals for the Sixth Circuit affirmed. 215 F. 2d 171. Because of the importance of the interpretation of the portal-to-portal provisions in the administration of the Fair Labor Standards Act, and because of a conflict between the circuits on the subject, Mitchell v. King Packing Co., 216 F. 2d 618, we granted certiorari in both cases, 349 U. S. 914. There is no question of back pay involved here because the Court limited its judgment to prospective relief. Nor is the question of changing clothes and showering under normal conditions involved because the Government concedes that these activities ordinarily constitute “preliminary” or “postliminary” activities excluded from compensable work time as contemplated in the Act. It contends, however, that such activities in the circumstances of this case are an integral and indispensable part of the production of batteries, the “principal activity” in which these employees were engaged, and are, therefore, compensable under the relevant provisions of the Act. The petitioners own and operate a plant where they are engaged in manufacturing automotive-type wet storage batteries which they sell in interstate commerce. All of the production employees, such as those with whom we are here concerned, customarily work with or near the various chemicals used in the plant. These include lead metal, lead oxide, lead sulphate, lead peroxide, and sul-phuric acid. Some of these are in liquid form; some are in powder form, and some are solid. In the manufacturing process, some of the materials go through various changes and give off dangerous fumes. Some are spilled or dropped, and thus become a part of the dust in the air. In general, the chemicals permeate the entire plant and everything and everyone in it. Lead and its compounds are toxic to human beings. Regular exposure to atmosphere containing 1.5 milligrams or more of lead per 10 cubic meters is regarded by the medical profession as hazardous and involving the possibility of lead intoxication or lead poisoning. In battery plants, such as this one, it is “almost impossible,” it was testified, to keep lead concentration in the air “within absolutely safe limits,” and in petitioners’ plant “lead oxide was on the floor and in the air and on the plates which employees handled.” Abnormal concentrations of lead were discovered in the bodies of some of petitioners’ employees, and petitioners’ insurance doctor recommended that such employees be segregated from their customary duties. The primary ways in which lead poisoning is contracted are by inhalation and ingestion; i. e., by taking in particles through the nose or mouth, an open cut or sore, or any other body cavity. The risk is “very great” and even exists outside the plant because the lead dust and lead fumes which are prevalent in the plant attach themselves to the skin, clothing and hair of the employees. Even the families of battery workers may be placed in some danger if lead particles are brought home in the workers’ clothing or shoes. Sulphuric acid in the plant is also a hazard. It is irritating to the skin and can cause severe burns. When the acid contacts clothing, it causes disintegration or rapid deterioration. Moreover, the effects of sulphuric acid make the employee more susceptible than he would otherwise be to contamination by particles of lead and lead compounds. Petitioners, like other manufacturers, try to minimize these hazards by plant ventilation, but industrial and medical experts are in agreement that ventilation alone is not sufficient to avoid the dangers of lead poisoning. Safe operation also requires the removal of clothing and showering at. the end of the work period. This has become a recognized part of industrial hygiene programs in the industry, and the state law of Tennessee requires facilities for this purpose. Tenn. Code Ann. (Williams 1934), 1952 Supp., Section 5788.15. In addition, the Tennessee Workmen’s Compensation Act, Tenn. Code Ann. (Williams 1934), 1952 Supp., Sections 6851-6901, which'covers petitioners, makes lead poisoning a com-pensable occupational disease (Section 6852 (d)). In order to comply with this statute, petitioners carry insurance, under Section 6895, to protect against liability, and the insurance carrier would not accept the insurance risk if defendants refused to have showering and elothes-changing facilities for their employees. Accordingly, in order to make their plant as safe a place as is possible under the circumstances and thereby increase the efficiency of its operation, petitioners have equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, they furnish without charge old but clean work clothes which the employees wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid causes such rapid deterioration that the clothes sometimes last only a few days. Employees regularly change into work clothes before the beginning of the productive work period, and shower and change back at the end of that period. Petitioners issued no written instructions to employees on this subject, but the employees testified and the foreman declared in a signed statement that “In the afternoon the men are required by the company to take a bath because lead oxide might be absorbed into the blood stream. It protects the company and the employee both.” Petitioners do not record or pay for the time which their employees spend in these activities, which was found to amount to thirty minutes a day, ten minutes in the morning and twenty minutes in the afternoon, for each employee. They do not challenge the concurrent findings of the courts below that the clothes-changing and showering activities of the employees are indispensable to the performance of their productive work and integrally related thereto. They do contend that these activities fall without the concept of “principal activity” and that, being performed off the production line and before or after regular shift hours, they are beyond the protection of the Fair Labor Standards Act. The trial court held that these activities “are made necessary by the nature of the work performed”; that they fulfill “mutual obligations” between petitioners and their employees; that they “directly benefit” petitioners in the operation of their business, and that they “are so closely related to other duties performed by [petitioners’] employees as to be an integral part thereof and are, therefore, included among the principal activities of said employees.” It concluded that the time thereby consumed is not excluded from coverage by Section 4 of the Portal-to-Portal Act, but constitutes time worked within the meaning of the Fair Labor Standards Act. The Court of Appeals affirmed, likewise holding that the term “principal activity or activities” in Section 4 embraces all activities which are “an integral and indispensable part of the principal activities,” and that the activities in question fall within this category. With this conclusion, we agree. ,The Portal-to-Portal Act was designed primarily to meet an “existing emergency” resulting from claims which, if allowed in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, would have created “wholly unexpected liabilities, immense in amount and retroactive in operation.” This purpose was fulfilled by the enactment of Section 2. The trial court specifically limited the effect of this judgment to services rendered after the judgment becomes final. We are not, therefore, concerned with the provisions of Section 2, which is inapplicable to actions relating to activities of employees performed after May 14, 1947. The language of Section 4 is not free from ambiguity and the legislative history of the Portal-to-Portal Act becomes of importance. That Act originated in a House bill, which had no provision comparable to Section 4, but rather gave similar treatment to retroactive and prospective claims; i. e., excluding coverage except by contract or custom in the industry. H. R. Rep. No. 326, 80th Cong., 1st Sess. 12. The Conference Report stated that the language of Section 4 follows the Senate bill. S. Rep. No. 48, 80th Cong., 1st Sess. 48. In the Senate, the colloquy between several Senators and Senator Cooper, a sponsor of the bill and a member of the three-man subcommittee that held hearings for the Committee on the Judiciary which reported it, demonstrates that the Senate intended the activities of changing clothes and showering to be within the protection of the Act if they are an integral part of and are essential to the principal activities of the employees. There is some conflicting history in the House, but the Senate discussion is more clear cut and, because the Section originated in that body, is more persuasive. In 1949, Section 3 (o) was added to the Act. Both sides apparently take comfort from it, but the position of the Government is strengthened by it since its clear implication is that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by agreement. The congressional understanding of the scope of Section 4 is further marked by the fact that the Congress also enacted Section 16 (c) at the same time, after hearing from the Administrator his outstanding interpretation of the coverage of certain preparatory activities closely related to the principal activity and indispensable to its performance. On the whole it is clear, we think, that while Congress intended to outlaw claims prior to 1947 for wages based on all employee activities unless provided for by contract or custom of the industry, including, of course, activities performed before or after regular hours of work, it did not intend to .deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities. Had Congress intended the result urged by petitioner, the very different provisions of Sections 2 and 4 would have been unnecessary; Section 2 could have been given prospective as well as retroactive effect. We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4 (a)(1). We find no difficulty in fitting the facts of this case to that conclusion because it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees. The judgment is Affirmed. APPENDIX TO OPINION OF THE COURT. Colloquy Between Senator Cooper and Other Senators. “Mr. COOPER. . . . Before the enactment of the Fair Labor Standards Act an employee might have worked upon a lathe under a contract, and his contract may have provided that his pay should commence at a scheduled hour, say at 7 o’clock when the lathe began to run, and he began to apply his energy to a casting or to a block upon the lathe. After the enactment of the Fair Labor Standards Act, by interpretations of the Wage and Hour Administrator, it was held that certain preparatory activities such as sharpening the tools, oiling the machinery, preparing his machinery for work, were so closely related to his productive activity that the employer must compensate the employee for it. We believe that in the use of the words ‘principal activity’ we have preserved to the employee the rights and the benefits and the privileges which have been given to him under the Fair Labor Standards Act, because it is our opinion that those activities which are so closely related and are an integral part of the principal activity, indispensable to its performance, must be included in the concept of principal activity. And to make our position clear we have given examples in the report. . . . “Mr. McGRATH. I think that at this point we might very definitely make contribution to the legislative history of what we are doing here. Am I correct in understanding the Senator to say that what the majority of the committee proposes is that any activity of a worker shall be considered a part of his principal activity if the doing of that act is indispensable to the performance of the rest of his day’s work? “Mr. COOPER. I can read the language used in the report, and I think that language should be used in this connection, because the words and phrases it employs were adopted by the committee. On page 48 of the report, in the definition of 'principal activity,’ we find these words: “ 'It will be observed that the particular time at which the employee commences his principal activity or activities and ceases his principal activity or activities marked the beginning and the end of his workday. The term “principal activity or activities” includes all activities which are an integral part thereof as illustrated by the following examples: “ T. In connection with the operation of a lathe an employee will frequently at the commencement of his workday oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term. “ ‘2. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.’ “We believe that our bill provides that the employee must receive compensation for such activities. “Mr. McGRATH. . . . Then we can clear that point up by reiterating that what the committee means is that any amount of time spent in the performance of the type of activity expressed in examples 1 and 2 is to be hereafter regarded as compensable time. “Mr. COOPER. I should certainly say so, as a part of the principal activity. “Mr. McGRATH. Th$re are innumerable instances of operations which have to be performed that are not covered in these two particular examples. I think of one at the moment. In certain of our chemical plants workers are required to put on special clothing and to take off their clothing at the end of the workday, and in some of the plants they are required to take shower baths before they leave. Does the Senator regard such activity as that as coming within the compensable workday? “Mr. COOPER. I am very happy that the Senator has asked the question, because I believe it gives the opportunity of drawing a fine distinction between the type of activity which we consider compensa-ble and the type which should not be compensable. In accordance with our intention as to the definition of ‘principal activity,’ if the employee could not perform his activity without putting on certain clothes, then the time used in changing into those clothes would be compensable as part of his principal activity. On the other hand, if changing clothes were merely a convenience to the employee and not directly related to the specific work, it would not be considered a part of his principal activity, and it follows that such time would not be compensable.” 93 Cong. Rec. 2297-2298. “Mr. BARKLEY. . . . Suppose that a man is a machinist or a mechanic of some kind. He is required to go to work at 8 o’clock. Let us assume for a moment that he is not a member of an organization. He is required to enter upon the actual labor, which might be termed his principal employment, at 8 o’clock in the morning and to spend 8 hours at such principal employment. But let us suppose that his employer requires him to be on the grounds and within the shop at 7:30 in the morning in order that he may spend half an hour sharpening and preparing the tools with which he himself or his colleagues in the factory are to work. Can anybody say that under those circumstances the 40-hour workweek has been complied with, as intended by the Fair Labor Standards Act ? If he is required to do that every day, instead of working 8 hours a day he will be working 8% hours a day. If he works 6 days a week, instead of 40 hours a week, he will be working more than 50 hours, every moment of which he is under the control of his employer, working with tools which belong to his employer, and he must abide by his orders or run the risk of discharge from his employment. “Is that a part of his principal employment, or is that preliminary ; or, if he is required to do it after the close of the shop in the afternoon, is that a part of the ‘postliminary’ work for which there is to be no compensation unless there is a contract or unless it has been the practice and custom for the employer to pay for the extra work done at his command ? “Mr. COOPER. The distinguished Senator has perhaps not had the opportunity to read the report of the committee. Let me say that on page 48 of the report of the committee that exact situation, or one as nearly comparable to it as probably could be cited, is discussed. In the report it is clearly stated that under such circumstances it is the intention of the framers of the bill that such activities shall be compensable, as a part of the principal activity.” 93 Cong. Rec. 2350. The only exception was one injured employee who, because of the danger of infection to his wounded foot in a common shower, bathed at his home which is about five blocks from the plant. “Sec. 4. . . . “(a) Except as provided in subsection (b), no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act'— “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and “(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. “(b) Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 86, 29 U. S. C. § 254. § 1 (a), 61 Stat. 84, 29 U. S. C. § 251 (a). “Sec. 2. . . . “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Heaiey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act [May 14, 1947]), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “ (2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 85, 29 U. S. C. § 252. See the colloquy quoted in an appendix to this opinion, post, p. 256. See Remarks of Representative Gwynne, 93 Cong. Rec. 4388-4389; Remarks of Representative Walter, id., at 4389; Remarks of Representative Michener, ibid. “Sec. 3 (o). Hours Worked. — In determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 63 Stat. 911, 29 U. S. C. § 203 (o). “Sec. 16 (c). Any order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the Secretary of Labor, and any agreement entered into by the Administrator or the Secretary, in effect under the provisions of the Fair Labor Standards Act of 1938, as amended, on the effective date of this Act, shall remain in effect as an order, regulation, interpretation, or agreement of the Administrator or the Secretary, as the case may be, pursuant to this Act, except to the extent that any such order, regulation, interpretation, or agreement may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator or the Secretary, as the case may be, in accordance with the provisions of this Act.” 63 Stat. 920. 29 CFR § 790.8. Question: What is the issue of the decision? A. arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration) B. union antitrust: legality of anticompetitive union activity C. union or closed shop: includes agency shop litigation D. Fair Labor Standards Act E. Occupational Safety and Health Act F. union-union member dispute (except as pertains to union or closed shop) G. labor-management disputes: bargaining H. labor-management disputes: employee discharge I. labor-management disputes: distribution of union literature J. labor-management disputes: representative election K. labor-management disputes: antistrike injunction L. labor-management disputes: jurisdictional dispute M. labor-management disputes: right to organize N. labor-management disputes: picketing O. labor-management disputes: secondary activity P. labor-management disputes: no-strike clause Q. labor-management disputes: union representatives R. labor-management disputes: union trust funds (cf. ERISA) S. labor-management disputes: working conditions T. labor-management disputes: miscellaneous dispute U. miscellaneous union Answer:
songer_casetyp1_7-3-1	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". ESTATE OF Maurice G. TODISCO, Framingham Trust Company, Executor, Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee. No. 84-1494. United States Court of Appeals, First Circuit. Argued Nov. 7, 1984. Decided March 13, 1985. Chester M. Howe, Boston, Mass., with whom Gaston Snow & Ely Bartlett, Boston, Mass., was on brief for petitioner, appellant. Bruce R. Ellisen, Washington, D.C., with whom Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Tax Div., Dept, of Justice, Washington, D.C., were on brief for respondent, appellee. Before CAMPBELL, Chief Judge, McGOWAN, Senior Circuit Judge, and BOWNES, Circuit Judge. Of the District of Columbia Circuit, sitting by designation. LEVIN H. CAMPBELL, Chief Judge. This is an appeal by the estate of Maurice G. Todisco, through the Framingham Trust Company, its executor, from a decision of the United States Tax Court that there was a deficiency in Todisco’s income tax for the taxable year 1972 of $14,598 plus interest and penalties for negligent underpayment and failure to timely file a return, and that there was no deficiency or overpayment for the taxable year 1973. Estate of Todisco v. Commissioner, 46 T.C.M. (CCH) 35 (1983). I. FACTS Maurice G. Todisco was part owner and an employee of a bar. His 1972 and 1973 federal income tax returns reported income earned from the bar but not from a bookmaking business which he also conducted. Todisco ran the bookmaking operation from April 1, 1972 to April 14,1973. Todisco accepted wagers on sporting events, horseracing and numbers. He employed one Anthony Pellegrino to answer the telephone and record wagers. Pellegrino was the principal witness for the Estate at the trial. On April 14, 1973, the Massachusetts State Police arrested Todisco for gaming violations. The police seized $5,925.25 in cash at the time of Todisco’s arrest, $26,-000 in cash from Todisco’s safety deposit boxes soon thereafter, and $4,521 from To-disco the following November. Those sums, totalling $36,446.25, were applied in toto to satisfy assessments in like amount against Todisco for state income taxes due on Todisco’s bookmaking income. At the time of Todisco’s arrest, the Massachusetts police also seized betting slips for the dates April 2-13, 1973. The total gross wagers for those dates were as follows: Date Gross Wagers April 2, 1973 $350.84 3 255.75 4 4,509.90 5 11,427.30 6 1.302.00 7 11,647.50 8 10,240.00 9 768.25 10 8,244.25 11 3,067.75 12 5.049.00 13 9,093.50 Copies of the actual betting slips for April 13, 1973 were introduced into evidence before the tax court. Copies of the slips for the dates April 2-12 were in the Commissioner’s possession prior to trial, but were either lost or destroyed and so were unavailable at trial. No other betting slips or other wagering records were found or introduced into evidence, which was to be expected given Todisco’s routine practice of destroying betting slips after two weeks. On April 13, 1973, the one day for which copies of betting slips are available, Todisco’s book won $4,690.25. and lost $4,140. Todisco’s gross profits were thus $550.25 on gross wagers of $9,093.50, yielding a gross profit percentage of 6.05 percent. The April 13 betting was distributed among basketball, baseball, horseracing, and numbers as follows: Gross Gross Bettor Bettor Profit Bets Lost Won (Loss) Basketball $7,450.00 $4,065.00 $3,125.00 $940.00 Baseball 330.00 225.00 75.00 150.00 Horses 350.00 857.00 (507.00) Numbers 50.25 83.00 (32.75) $9,093.50 $4,690.25 $4,140.00 $550.25 Gross wagers for numbers-and horseracing were not recorded; from the gross wagers on other events, it is possible to determine that the combined gross wagers on numbers and horseracing was $1,313.50. Thus, on that one day, Todisco suffered losses on horses and numbers, and had a gross profit of 12.6 percent on basketball wagers and 45 percent on baseball wagers. II. TAX COURT DETERMINATION OF TODISCO’S GROSS PROFIT PERCENTAGE At trial, the Commissioner argued that Todisco’s gross profit percentage to be used in calculating Todisco’s estimated gross income from bookmaking should be ten percent. As Special Agent Avila, the revenue agent assigned to Todisco’s audit, testified, “In reviewing the betting slips, I could see the profit line built right in---It cost you $5.50 to make $5.00.” Avila’s testimony reflected Pellegrino’s earlier testimony that a bettor would have to put up $55 to win an additional $50 on a basketball game. Todisco’s estate argued that Special Agent Avila’s conclusion that Todisco’s gross profit percentage was ten percent did not follow from the premised odds. It noted that if one posited a basketball game for which the total bets for each side were equal, i.e., a game with a so-called balanced book, with, say, $55 bet on each side, then Todisco would pay out $50 to the winner and collect $55 from the loser, thereby producing a gross profit of $5 on total wagers of $110; assuming a balanced book, then, Todisco’s gross profit percentage would be 4.54 percent. Pellegrino testified that recovering this percentage, known to bookmakers as the “juice,” was Todisco’s intended means of making a profit, and that Todisco, when presented with an especially unbalanced book, would place balancing bets with other bookmakers to reduce his potential exposure should the team more heavily bet on win. The estate also noted that the actual gross profit percentage for April 13, 1973, the one day for which sufficient records were available, was 6.05 percent. The estate argued that the segment of the betting generating the highest gross profits and a higher-than-average gross profit percentage, basketball, was overrepresented in the betting slips for April 13, 1973 because three NBA playoff games, including one involving the Boston Celtics, were played on that date; as Pellegrino testified, bettors would “go wild” during the playoffs. Finally, the estate presented considerable evidence that Todisco’s net worth and lifestyle were inconsistent with the amount of bookmaking income a ten percent gross profit percentage would indicate. The tax court acknowledged that the Commissioner’s method for calculating To-disco’s gross profit percentage was spurious. It also found from an examination of the betting slips from April 13, 1973 that the factual assumption underlying the estate’s theoretical estimate of Todisco’s gross profit percentage at 4.54 percent, i.e., Todisco’s having kept a balanced book, did not obtain. For example, on the Boston Celtics-Atlanta Hawks game of April 13, 1973, $2,885 was be.t on the Celtics, but only $1,100 was bet on the Hawks. While it is true that Todisco would try to compensate for a particularly unbalanced book by making balancing bets with other bookmakers, the fact that he was willing to accept unbalanced wagers made it impossible in the tax court’s eyes to use 4.54 percent as the best estimate of Todisco’s gross profit percentage. The tax court concluded, “[I]t is impossible, without adequate records, to know what his exact profit percentage was,” but “[a]fter careful consideration of all the facts in the record, with particular emphasis on the spread of profit percentages among the events on April 13, 1973, we find that Todisco’s profit percentage was 8 percent.” 46 T.C.M. at 41. The estate contends that the evidence does not support a finding that To-disco’s gross profit percentage exceeded 6.05 percent. Since the determination of Todisco’s gross profit percentage is a matter of fact, we examine the finding of the tax court only for the presence of clear error. Taylor v. Commissioner, 445 F.2d 455, 459 (1st Cir.1971). Because we can discover no material support in the record for a gross profit percentage of eight percent (or any other figure in excess of 6.05 percent), we are obliged to conclude that the tax court committed clear error in calculating the 1973 tax deficiency on the basis of a profit percentage of eight percent. The tax court’s sole stated ground for estimating the 1973 gross profit percentage at eight percent was the spread of profit percentages on April 13, 1973: 45 percent for baseball, 12.6 percent for basketball, and losses on numbers and horseracing. For this spread to be evidence for a higher gross profit percentage than 6.05 percent, the court was required to find either that the profitable bets were systematically underrepresented in the mix of betting for April 13, 1973, or that the various profit percentages were systematically too low, or both. As to the former, the evidence suggests, if anything, that the profitable bets were overrepresented on that date, since April 13 fell both at the beginning of the baseball season, when bets could be expected to be higher, and during the NBA playoffs, in which the Boston Celtics were involved, while numbers and horseracing presumably continued year around or nearly so at constant levels. As to the latter, the only evidence presented was the theoretical estimate based on a balanced book of 4.54 percent for sporting events, and testimony by Pellegrino that Todisco’s profit margins on horseracing and numbers were 5 and 50 percent, respectively, and that baseball wagering generally lost money for bookmakers and was only offered as a service to bettors. Thus, aside from wagering on numbers, which made up only a tiny fraction of the total wagers, the evidence suggests that Todisco’s long-term gross profits were around five percent, as Pellegrino testified; there is, in any event, no evidence that Todisco’s gross profit percentage exceeded 6.05 percent, the amount earned on April 13, 1973. In support of the reasonableness of the tax court’s eight percent gross profit percentage, the Commissioner makes two arguments. First, he suggests the actual gross profit percentage achieved on April 13, 1973, 6.05 percent, was abnormally low because, as Pellegrino testified, on a typical day, Todisco would not have lost money on horses and numbers. True enough, but Pellegrino’s testimony also suggests that on a typical day Todisco would not have made as much as 45 percent on baseball and 12.6 percent on basketball either. The tax court cannot, at least without some reasonable basis for doing so, select out from Pellegrino’s testimony only those aspects which make for a higher tax. Second, the Commissioner argues that Todisco’s failure to keep a balanced book on April 13 warrants disregarding the 4.54 percent theoretical estimate and assuming a figure such as eight percent. We disagree. Pellegrino’s testimony was all to the effect that Todisco undertook to keep as balanced a book as possible, and that Todisco’s profit came from the “juice.” Such intentions are admittedly only indirect evidence of their desired result, but they are evidence nonetheless. On the other side of the scale, there is no evidence that Todisco consciously refused wagers because he thought the bettor had picked a winner, that he himself solicited wagers other than balancing wagers with other bookmakers, or that such practices are customary among bookmakers. The mere fact that he did not have a perfectly balanced book with respect to the April 13 basketball games is as easily explained by the difficulty of finding someone in Boston who would cover bets against the Celtics as by some theory that Todisco was skilled at increasing his take by covering only those bets on which he was likely to lose out. For this latter theory to hold water, we think it was necessary for there to be some other supporting evidence. There is none. The only actual evidence is that Todisco’s criterion for refusing or soliciting wagers was their tendency to disturb or create a balanced book. We recognize that the necessity for estimating Todisco’s income arose from Todisco’s failure to maintain adequate records. This fact inclines us to uphold any reasonably supported estimate made here. Still, there must be some basis for the figure selected. We note, moreover, that records for 11 of the 12 days for which slips were kept were either lost or destroyed while in the custody of the state or the Commissioner. The Commissioner thus bears some responsibility for the lack of evidence upon which to reconstruct taxpayer’s earnings. Furthermore, this is not a case in which the Commissioner alleges that the few figures available relative to taxpayer’s activities were inaccurate. See, e.g., Truman v. Commissioner, 8 T.C.M. (CCH) 108 (1949). As the tax court stated in Rainwater v. Commissioner, 23 T.C. 450 (1954), [T]rue, petitioner had destroyed [the original betting slips for all but a two-week period,] and thus has made the Commissioner’s task of auditing the returns immeasurably more difficult than it should be. This is conduct that is not to be condoned. Perhaps the Treasury should seek and the Congress should provide it with appropriate and effective sanctions, civil or criminal or both, against taxpayers who fail to keep or who do away with important records bearing on their liability. But, under the law as it now stands we are not empowered to approve deficiencies merely because records have been destroyed. Id. at 456. Because the Commissioner has presented no credible arguments or evidence for setting Todisco’s gross profit percentage higher than the 6.05 percent that the extant records indicate, we think the tax court’s finding that Todisco’s gross profit percentage was eight percent was arbitrary and excessive, and so unsustainable. See Helvering v. Taylor, 293 U.S. 507, 514-15, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935). On remand, the tax court should recalculate the estate’s tax liability applying the 6.05 percent figure. III. ERRONEOUS ASSIGNMENT OF BURDEN OF PROOF The estate suggests that the tax court erroneously placed the burden of disproving the Commissioner's deficiency calculation on the estate; in so arguing, the estate relies on United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), for the proposition that a “naked” assessment of tax is without validity. Our response is twofold. First, in light of the fact that the tax court accepted neither the Commissioner’s determination of Todisco’s gross profit margin nor of the amount of his gross wagers, but instead made its own findings, the question of the allocation of burdens seems irrelevant. Second, granting for the sake of argument that the Commissioner’s method of arriving at a ten percent gross profit margin was arbitrary and that the Commissioner shares in the fault along with Todisco for the lack of evidence of Todisco’s bookmaking operations, it is clear nonetheless that Todisco earned bookmaking income in 1972 and 1973. The Commissioner’s present action is thus not a naked assessment of tax. The Commissioner calculated Todisco’s gross income from bookmaking by taking Todisco’s gross wagers from the period April 2-13, 1973 to be his total gross wagers for an even two-week period, dividing it by two to obtain his average weekly wagers, multiplying the average by the ten percent estimated profit margin to obtain average weekly profits, and finally multiplying the average weekly profit by the number of weeks in 1972 and 1973 that Todisco ran his bookmaking operation to obtain gross income from wagering in those years. We agree with the tax court’s approval of both the commissioner’s general method for calculating Todisco’s gross bookmaking income and his method for calculating Todisco’s gross wagers as reasonable. The fact that the Commissioner’s calculation may have been based in part on an erroneous formula for determining gross profit percentage does not disturb the basic rule in all tax cases that the burden of proof rests on the taxpayer. United States v. Rexach, 482 F.2d 10 (1st Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973). As to the only aspect of the Commissioner’s calculations that might be said to be arbitrary, the determination of Todisco’s gross profit margin to be ten percent (reduced by the tax court to eight percent), this court has already accepted the estate’s argument in the previous section. IV. STATE TAXES Section 165(d) of the Internal Revenue Code provides as follows: (d) Wagering losses. — Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions. In Offutt v. Commissioner, 16 T.C. 1214 (1951), the tax court held that the predecessor of section 165(d) in the Internal Revenue Code of 1939 limited the deductibility of the mailing, printing, and stenographic expenses of a bookmaker to the amount of his wagering income. Under the authority of Offutt, the Commissioner limited the availability as a federal income tax deduction of the $36,446.25 seized by the Massachusetts State Police in 1973 in payment of state income taxes, which would otherwise be deductible under I.R.C. § 164, to the amount of Todisco’s bookmaking income in 1973. The tax court adopted this position below. The estate argues that the section 164 deduction for state income taxes is generally not considered an expense “attributable to a trade or business carried on by the taxpayer” for the purposes of calculating adjusted gross income under I.R.C. § 62(1). See 26 C.F.R. § 1.62-l(d); Tanner v. Commissioner, 45 T.C. 145, aff'd, 363 F.2d 36 (4th Cir.1966). 26 C.F.R. § 1.62-l(d) explains that state income taxes are generally not “attributable to a trade or business” because they are too “remotely[ ] connected with the conduct of a trade or business.” Therefore, since they are not attributable to Todisco’s bookmaking for purposes of computing his adjusted gross income under section 62(1), so the estate argues, they are not losses from wagering for purposes of section 165(d). This argument also distinguishes the expenses whose deductibility was held in Offutt to be subject to the section 165(d) limitation, since mailing, printing, and stenography would fall within section 62(1). As a general matter, we agree with the proposition that state taxes levied on an individual’s net income from all sources are too remotely connected to any wagering income that an individual might have to be subject to section 165(d). In this case, however, the taxes assessed represented amounts confiscated from Todisco specifically for state income taxes due on Todisco’s bookmaking income. 46 T.C.M. at 38. This particular assessment is thus directly tied to Todisco’s bookmaking income, and hence is subject to the limitation of section 165(d). In analogous settings, the IRS has ruled that state individual income taxes on net income from business profits are attributable to a taxpayer’s trade or business for the purpose of computing the amount of any net operating loss carryforward or carryback under I.R.C. § 172(d)(4), see Rev. Rui. 70-40, 1970-1 C.B. 50. Moreover, in direct response to the estate’s argument, the IRS has ruled that state taxes on gross income directly attributable to an individual’s trade or business are deductible for the purpose of determining adjusted gross income under section 62(1). Rev.Rul. 58-142, 1958-1 C.B. 147, reaffd, Rev.Rul. 70-40, 1970-1 C.B. 50. Accordingly, on the facts of this case, we see no reason not to extend the reasoning of Offutt to state income taxes paid by an individual on gambling income. V. FEDERAL WAGERING EXCISE TAXES Section 446(b) of the Internal Revenue Code provides as follows: (b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income. The estate argues that the tax court erred in upholding the decision of the Commissioner to compute Todisco’s taxable income from bookmaking on a cash basis. The upshot of that decision is that the ten percent federal excise tax on gross wagers imposed on Todisco in 1973 has never been available as a deduction against Todisco’s income taxes, since it has never been paid. The estate suggests that the taxes accrued in 1972 and 1973, and that the only method of accounting that clearly reflects Todisco’s bookmaking income for those years would be to allow the excise taxes as deductions when accrued. This argument has one fatal factual flaw: as a comparison of the amount of the excise tax levied ($49,467.04) and the original estimate by the Commissioner of Todisco’s estimated gross wagers for 1973 ($494,670.30) reveals, the excise tax was imposed only on Todisco’s 1973 gross wagers. Since Todisco’s losses and expenses from 1973 bookmaking aside from the excise tax already exceeded his 1973 bookmaking income, and since the estate concedes that federal wagering excise taxes are subject to the section 165(d) limitation, a change of accounting method would have no effect on Todisco’s 1973 taxable income. Furthermore, a change in accounting method could not affect Todisco’s 1972 taxable income, since the taxes accrued in 1973. The decision of the tax court is affirmed, except for that part pertaining to the deficiency due for the taxable year 1972 and the additional tax due for that year, which are vacated and the cause is remanded to that court for recomputation in accordance with the opinion filed this date. No costs. So ordered. . At another point in his brief, the Commissioner attacks the consistency of Pellegrino’s testimony. The alleged inconsistency arises from his testimony at various points that Todisco’s gross profit percentage was about five percent, but that Todisco's average weekly gross profits were about $500 and his typical weekly gross wagers during non-playoff periods were roughly $2,000. From the latter two figures the Commissioner imputes to Todisco the conclusion that Todisco’s profits were in fact roughly 25 percent, thereby ignoring the fact that the $2,000 figure was stated to be Todisco’s typical weekly gross wagers during non-playoff periods. In light of Pellegrino’s testimony that bettors would be "wild” during the playoffs, thereby greatly increasing the weekly wagers, we find nothing necessarily inconsistent in his testimony. . As a general matter, expenses that fall within section 62 are taken into account in computing a taxpayer’s adjusted gross income, and hence are available as a deduction to all individuals while most other deductions are used in computing taxable income, and hence are available to an individual only if he or she itemizes, see I.R.C. § 63. . It should be noted that Massachusetts during 1973 imposed a flat tax on taxable income, using federal definitions of income as its starting point. Mass.Gen.Laws ch. 62, § 4. Because the tax is flat, the amount assessed against To-disco for his bookmaking income is less dependent on the amount of his other income than would be the case under a progressive tax. . Before the tax court, the estate evidently advanced the argument that the amount of state income and federal excise taxes not available in 1973 because of the section 165(d) limitation could be carried back to 1972 as a net operating loss under I.R.C. § 172(c). The tax court correctly rejected this argument on the grounds that "the section 165(d) limitation means that petitioner has no 'excess of the deductions allowed by this chapter over the gross income’ for 1973, and thus has no net operating loss to be carried back from 1973.” 46 T.C.M. at 45. Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? A. state or local tax B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) C. federal tax - business income tax (includes corporate and parnership) D. federal tax - excess profits E. federal estate and gift tax F. federal tax - other G. patents H. copyrights I. trademarks J. trade secrets, personal intellectual property Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. UNITED STATES of America, Appellant, v. Joseph A. TRAVISANO, Defendant-Appellee. No. 138, Docket 83-1159. United States Court of Appeals, Second Circuit. Argued Sept. 1, 1983. Decided Dec. 22, 1983. Jeremiah F. Donovan, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Alan H, Nevas, U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellant. Richard A. Reeve, Asst. Federal Public Defender, D. Conn., New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D. Conn., New Haven, Conn., of counsel), for defendant-appellee. Before KEARSE, CARDAMONE and WINTER, Circuit Judges. CARDAMONE, Circuit Judge: Upon application of the local police following a shooting and robbery in August 1982, a Superior Court Judge in Connecticut issued a search warrant for a West Haven residence. The ensuing search failed to unearth the instrumentalities of that crime, but did turn up an unregistered gun which later resulted in a federal indictment being lodged against defendant Joseph Travisano. The indictment charged Travisano with possession of an unregistered short barrelled Winchester shotgun in violation of 26 U.S.C. §§ 5861 and 5871 (Count One), and, as a previously convicted felon, with possession of a firearm that had affected commerce in violation of 18 U.S.C.App. § 1202(a) (Count Two). In granting defendant’s motion to dismiss both counts of the indictment, the district court set forth its reasons in an opinion, United States v. Travisano, 560 F.Supp. 627 (D.Conn.1983). While we agree with the trial court’s conclusion that Count Two should have been dismissed, since the issue raised by the government is one of first impression we set forth our reasons for affirming on that count in some detail later in this opinion. We reverse and remand for trial on Count One because in our view probable cause did exist for the issuance of the search warrant. I The facts in this kind of case are critical. Here, while concededly close, they are not in dispute. We recite them chronologically. At 2:13 on Monday afternoon August 9, 1982, two messengers employed by the AAA Motor Club in Hamden, Connecticut were robbed in the AAA parking lot. During the course of the robbery one of the messengers was shot in the face and seriously wounded. The robbers stole an AAA Motor Club flight bag which had three American National Bank bags containing over $35,000 in cash and $45,000 in checks payable to the AAA. Eyewitnesses saw two men flee from the scene of the shooting, run south to the vicinity of a Howard Johnson parking lot and jump into an older-make white Cadillac in which a third male was waiting. The Cadillac carried a vanity plate in front, identified by one witness as “Baby Joe,” and the first two letters of the Connecticut license plate mounted on the rear were noted as “YE.” The news media reported this incident and broadcast the fact that the police were searching for a white Cadillac bearing a vanity plate. The next morning — Tuesday, August 10 —the West Haven Police, responding to a Connecticut police teletype message sent to give notice of the robbery, advised that one of their officers had observed a vehicle, which matched the one described, on Elm Street in West Haven. At 10:30 a.m. the Hamden police' established surveillance of this vehicle which was parked in a driveway at 371 Elm Street and bore Connecticut license plate number YE1034. The police learned that this 1970 white Cadillac was registered to Marie Travisano, a resident at the Elm Street address. West Haven police told the Hamden officers that Marie Travisano’s son, Mark, frequently used the Cadillac and that in the past it had carried a vanity plate which the West Haven officers recollected as bearing the legend “Baby John.” On the morning of August 10, during the course of the Hamden police surveillance, the automobile was being operated by a white female. It was immediately observed that the identifying vanity plate had been removed. Randy Borruso, one of the eyewitnesses to the shooting, was shown the vehicle while it was parked on Elm Street that morning and he identified it as the white Cadillac he had seen the day before speeding from the scene of the shooting and robbery. The surveillance was terminated at noon. Within the next hour or so, two Hamden police detectives with combined experience of 39 years as police officers presented the above information in affidavit form to Judge Harrigan, a Superior Court Judge of the State of Connecticut. He signed the search warrant authorizing the Hamden officers to search the white Cadillac and the residence at 371 Elm Street for the AAA Motor Club flight bag, the three American National Bank bags, a .38 caliber handgun, a vanity plate with the legend “Baby John”, numerous checks payable to the AAA Motor Club and a large amount of paper currency. The warrant was executed at 2:30 p.m. that same afternoon at the Elm Street address. None of the enumerated items of evidence were discovered, but during the search the police found an unregistered sawed-off shotgun (that was the subject of the motion to suppress) in the front foyer closet of the Elm Street residence. In suppressing the gun, the illegal possession of which is the gravamen of Count One, the district court found “only a minimal connection between the instrumentalities of the robbery and the residence, namely, the fact that the car was located in front of the house and that the police somehow knew that the owner’s white male son was a frequent driver of the vehicle.” 560 F.Supp. at 629. We disagree. In our view of the law of probable cause, there were sufficient facts before the State Court Judge for him to sign the search warrant. II Countless are the cases that undertake to define probable cause. The recitation of what we believe are the applicable rules to apply in this case will be brief. Searches under the authority of an arbitrarily obtained warrant like the flagrant one in Wilkes v. Wood, 19 Howell’s State Trials 1153, 98 Eng.Rep. 489 (K.B.1763), are what prompted the concerns of the framers of the Bill of Rights. In Wilkes, the Secretary of State authorized a general warrant in a search for the author of a pamphlet critical of the King. The warrant did not name any person who could be searched or describe the items to be seized. Under its authority, 49 persons were quickly arrested on suspicion and from them it was learned that John Wilkes might be the author of the offending publication. Armed with that intelligence, the warrant which had been issued three days earlier was immediately executed at Wilkes’ home. All his private papers, including his will, were seized by the messengers dispatched for that purpose, after they had forced his cabinet drawers. The wrong done Wilkes was righted after a stirring trial by a jury award of a thousand pounds damages. But, a lesson had been learned from the use to which this general warrant had been put. If a public official could arbitrarily order the home of a member of Parliament searched and his papers and personal effects seized, what then of the rights of everyday citizens? Plainly, the answer was that to safeguard individual rights of privacy would require the imposition of restraints upon those officials granted the power to issue warrants. With the lesson grasped, the Fourth Amendment was drafted to provide that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. See Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich.L.Rev. 1229, 1237 (1983) (“Loewy”). In the American colonies prior to the Revolution, customs officers used writs of assistance to enter and search buildings for smuggled goods. It was against their issuance that James Otis, representing 63 Boston merchants, protested. His oratory on the occasion was such that one commentator ascribed to John Adams the belief that Otis’ speech marked the birth of American Independence. 1 W. LaFave, Search and Seizure, § 1.1, at p. 4 (1978) (“LaFave”). At any rate, the use of these infamous writs became so sharply etched in the minds of those who later attended the Constitutional Convention of 1787 as to make the need for a provision dealing with searches a focal point in the ratification debates. James Madison later undertook the drafting of a suitable clause in the Bill of Rights and, in substance, his words comprise the first phrase of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... ” U.S. Const, amend. IV. See W. LaFave, supra § 1.1, at 5. The qualifying language of the Fourth Amendment which prohibits unreasonable searches and warrants issued without probable cause plainly implies that there is no constitutional prohibition against a reasonable search, nor one against a properly issued warrant. The reason is that the government’s interest in obtaining evidence of crime is so compelling that without the means to accomplish it, people would never be secure in their persons, houses or papers. See, e.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The common thread that laces together the two phrases of the Fourth Amendment — one which reflects the history and experience that brought the Amendment into being — is the constraint it exerts on the exercise of arbitrary power in both the issuance of a warrant and-the conduct of a search or seizure. Thus, while the Amendment provides for the needs of the community in obtaining evidence of crime, its built-in restraints also safeguard the right of individual privacy — one of the bulwarks of liberty. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). Ill In order to assure that neither one of these policies is emphasized at the expense of the other, a neutral and detached magistrate is inserted between the government’s agents and the object of the search. It is the magistrate’s duty to hold the balance steady between the protection of individual privacy on the one hand and the public need to recover evidence of wrongdoing on the other. The magistrate should first satisfy himself as to the adequacy and reliability of the facts set forth in the application before him. See United States v. Beltempo, 675 F.2d 472, 477 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). It is from these facts and any reasonable inferences to be derived from them that he determines whether probable cause to issue a warrant is or is not present. To establish probable cause to search a residence, two factual showings are necessary — first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence. See United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971). Cf. Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1949). In this case it is conceded that a crime was committed, so our focus will turn shortly to the second required showing. Once a magistrate has made a determination on the issue of probable cause, our analysis shifts to the function of the reviewing court. Its after-the-fact examination of the papers is not to be de novo review. Illinois v. Gates, - U.S. -, -, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). It should start with the proposition that the magistrate’s finding of probable cause is entitled to substantial deference. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960); United States v. Zucco, 694 F.2d 44, 46 (2d Cir.1982). In fact, a search based upon a magistrate’s determination will be upheld by a reviewing court on less persuasive evidence than would have justified a police officer acting on his own. Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. at 1512. Further, the magistrate’s finding of probable cause is itself a substantial factor tending to uphold the validity of this warrant. United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.) (per curiam), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980); United States v. Follette, 379 F.2d 846, 848 (2d Cir.1967); United States v. Freeman, 358 F.2d 459, 462 (2d Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966); United States v. Ramirez, 279 F.2d 712, 716 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960). This is particularly true in close cases where doubts should be resolved in favor of upholding the warrant. United States v. Zucco, 694 F.2d at 46; United States v. Jackstadt, 617 F.2d at 14; Accord United States v. Lewis, 392 F.2d 377, 379 (2d Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968). Having viewed the papers in light of these precepts and having accorded great deference to the magistrate’s finding of probable cause, it remains for the reviewing court to decide whether the magistrate performed his neutral and detached function on the facts before him, and did not merely serve as a rubber stamp for conclusions drawn by the police. Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. at 1512. In deciding whether the magistrate has done his part in a neutral manner, the reviewing court must have in mind that probable cause has been stated to be a “practical, nontechnical conception ... [and] in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, - U.S. at -, 103 S.Ct. at 2328; see also Brinegar v. United States, 338 U.S. at 176, 69 S.Ct. at 1311; United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983). In considering the quantum of certainty required, it is only a probability, and not a prima facie showing of criminal activity, that is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Plainly, the standard of probable cause cannot imply “more probable than not” under circumstances such as those here where many locations were available to the guilty parties to secrete the stolen goods. See 1 W. LaFave, supra § 3.2, at pp. 486-93. Nor must the standard used by a reviewing court be so stringent, technical or grudging as to discourage the use of search warrants. United States v. Ventresca, 380 U.S. at 108, 85 S.Ct. at 745; United States v. Freeman, 358 F.2d at 461. Because the application for a search warrant, as this case illustrates, is often drafted by the police “in the midst and haste of a criminal investigation,” the papers should be read practically and in a commonsense fashion. United States v. Ventresca, 380 U.S. at 108, 85 S.Ct. at 745. In sum, the applicable standard to be derived from these principles is that there be a fair probability that the premises will yield the objects specified in the search warrant. See Illinois v. Gates,-U.S. at -, 103 S.Ct. at 2336. IV We turn now to the application of these standards to the second required showing, i.e., that there was probable cause to believe that evidence of the robbery and shooting, and the missing vanity plate was to be found at the Elm Street residence. The robbery occurred on the afternoon of August 9, and by the morning of August 10, the police had pinpointed their surveillance to the residence at 371 Elm. They knew that the owner of the vehicle parked in front of the house lived there, and that the vehicle was known to carry a white vanity plate reading “Baby John.” Considering the value of the items which were stolen and the short time involved, the magistrate could reasonably infer that the robbers had time to remove and secrete the items and desired to secure these items in a safe area such as a residence. In view of the fact that the media reported that the police were searching for a white Cadillac with a vanity plate, its removal — like flight from the scene of the crime — is some indication of a guilty person’s concern at being identified. It is hardly a coincidence that someone connected with the previous day’s crime had removed the plate; rather, it is a strong inference. A reasonable conclusion would be that finding the plate would also lead to the gun and stolen goods. The fact that the getaway car was located in front of its owner’s house militates against any finding that it had been stolen, except in the highly unlikely event that the fleeing robbers courteously returned the car to its owner after their hurried departure from the Howard Johnson parking lot. It is much more probable that there was some nexus between the car and those residing in the house at 371 Elm Street. At the very least, the owner had either recently loaned the Cadillac or acquiesced in someone else’s use of it. In either event, there was an articulable connection between the residence and the Cadillac used in the robbery so as to remove the Elm Street house and its occupants from the category of innocent householders whose privacy the Fourth Amendment protects. Loewy, supra, at 1248 et seq. Under the applicable tests, we conclude that the state court magistrate had sufficient underlying facts before him so as to make it a fair probability that the items sought would be found in the Elm Street residence. Thus, the issuance of the search warrant did not violate the Fourth Amendment. The order of the district court, insofar as it suppresses the gun, is therefore reversed and the case remanded for trial on Count One of the indictment. V We turn finally to the district court’s dismissal of Count Two of the indictment that charged Travisano, as a previously convicted felon, with possession of a firearm which had affected commerce in violation of 18 U.S.C.App. § 1202(a). On appeal, as in the court below, the government has conceded that it cannot establish that the firearm travelled in interstate commerce after its manufacture. It argues instead that it should be permitted to satisfy the commerce requirement by showing that the process of manufacture of the gun affected commerce. Section 1202 subjects any convicted felon “who receives, possesses or transports in commerce or affecting commerce, ... any firearm” to a $10,000 fine or two years in prison or both. The commerce power has been broadly construed in other contexts since Chief Justice Marshall’s decision in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). The power of Congress to reach even local activities if they exert a substantial economic impact on interstate commerce has been held to be constitutionally within the proper scope of federal regulation, despite the fact that the effect on interstate commerce may be only indirect. See Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942). The same rationale that sustains Congress’ power when it acts in the field of civil regulation has also been employed in analysis of the constitutionality of criminal statutes. Thus, when Congress passed a statute making “loan-sharking” activities a federal offense, the Supreme Court sustained a conviction under the statute and noted that extortionate credit transactions may be purely intrastate and still, in the judgment of Congress, affect interstate commerce. See Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971). The findings of Congress, the court continued, are quite adequate to show a “tie-in between local loan sharks and interstate crime.” Id. at 155, 91 S.Ct. at 1362. The present statute presents an entirely different picture. This statute, con-cededly not a model of clarity, also has raised such substantial questions about its constitutionality — were it to be read as proscribing mere possession of a firearm — that the Supreme Court was prompted to conclude “that Congress has not ‘plainly and unmistakably’, United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857 (1917), made it a federal crime for a convicted felon simply to possess a gun absent some demonstrated nexus with interstate commerce.” United States v. Bass, 404 U.S. 336, 348-49, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971). In interpreting this statute, it must be remembered that some nexus with commerce must be shown, although that need not be “any more than the minimal nexus that the firearm have been, at some time, in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977). While conceding that it cannot prove that the shotgun travelled in interstate commerce, the government asks us to remand the case for a hearing for it to demonstrate a nexus between the crime and interstate commerce, i.e., for it to show that the process of the Winchester shotgun’s manufacture affected commerce. It contends that since no limit has been established for what constitutes the minimal nexus requirement, citing United States v. Montoya, 676 F.2d 428, 433-34 (10th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 124, 74 L.Ed.2d 108 (1982) and United States v. Perkins, 633 F.2d 856, 859 (8th Cir.1981), we are free to rule that manufacture affecting commerce is a sufficient nexus. There is no doubt that Congress sought by § 1202 to punish broadly the possession of firearms by convicted felons. What is not so clear — and makes this issue one of first impression — is whether the minimal nexus set forth in Scarborough establishes a limit, so that any proof, short of evidence that the firearm in question itself travelled in interstate commerce, is insufficient. Plainly, the manufacture of any firearm has some impact on interstate commerce. Nothing in the legislative history suggests that the government could satisfy the terms of the statute and obtain convictions under it simply by showing that the manufacturing process affected commerce. This history, fully set forth in Scarborough, makes clear that the crime referred to involved possession of a “weapon” or “gun” which was equated with “firearm.” 431 U.S. at 572-74, 97 S.Ct. at 1967-69. Section 1202(c)(3) provides that: “firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer; or any destructive device. Such term shall include any handgun, rifle, or shotgun. Arguably, under such definition, parts are considered a “firearm”, e.g., the use of the word “frame” and “receiver” in the definition suggests it. Nonetheless, the primary thrust of the definition of the word “firearm” appears to include weapons “designed to expel a projectile”, or an attachment to such weapon, like a silencer, or “any destructive device.” Moreover; if the definition has an ambiguity it simply emphasizes the Supreme Court’s finding that this statute is not a model of clarity. Scarborough v. United States, 431 U.S. at 567, 97 S.Ct. at 1965. There is not sufficient substance to the government’s argument to persuade us that the process of manufacture will satisfy the statute’s requirements and sustain a criminal conviction. Finally, were we to adopt the government’s view, the commerce requirement set forth in the statute would have no meaning since any convicted felon with a gun would be guilty of a federal crime without proof of nexus. We do not believe that this was Congress’ purpose. Accordingly, we affirm the dismissal by the district court of Count Two. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. KOCH v. CHICAGO & N. W. RY. CO. No. 10858. United States Court of Appeals Seventh Circuit. Dec. 3, 1953. Louis G. Davidson, Chicago, Ill., Arthur Ryan, Chicago Ill, for plaintiff-appellant. Charles F. White, Edward J. Fleming, Chicago, Ill., for appellee. Before DUFFY, LINDLEY and SWAIM, Circuit Judges. SWAIM, Circuit Judge. This is an action to recover damages for personal injuries to the plaintiff, Louis W. Koch, suffered while he was unloading express packages and parcels from the defendant’s railroad car, which injuries were alleged to have been caused by the negligence of the defendant in so stopping its train and then in refusing to move it, which action and refusal to act resulted in the plaintiff being obliged to assume a dangerous position in which to work. At the close of the plaintiff’s evidence and again at the close of all the evidence, the defendant moved for a directed verdict. Rulings on the motions were reserved, and the case was submitted to the jury. The jury being unable to agree on a verdict, the District Court entered judgment for the defendant in accordance with the motion for a directed verdict. From this judgment the plaintiff appeals. Considering the evidence and all reasonable inferences favorable to the plaintiff, the relevant facts are as follows: The accident occurred August 24, 1948, at about 10:00 A. M., at the defendant’s station in West Elgin, Illinois. The track here ran in a northerly and southerly direction, and the east wall of the station building was located parallel to and 15 feet west of the track. A platform of crushed stone between the station and the track extended beyond the building in each direction. The plaintiff was a truck driver employed by the Railway Express Agency, and it was his duty to meet the defendant’s northbound local No. 703 to deliver and pick up express shipments. In taking express off the train he was subject to the orders and directions of the conductor, and a contract between the railroad and the Railway Express Agency required the plaintiff to do his work promptly. He was assisted in the unloading by a messenger who rode the express car. It was the plaintiff’s habit to park his truck on the platform north of the station building, facing west, and thus be prepared to back up to the doorway of the express car when the train arrived. The doorway was four or five feet wide and located in the forward part of the car, about ten feet from the front end. The truck which plaintiff drove was a little more than 16 feet long and the bed was eight feet wide. The train was customarily stopped so that the forward part of the express car would be out in the clear north of the station building. The plaintiff could then back his truck squarely up to the doorway at a right angle to the car. On the morning of the accident the plaintiff parked his truck in the usual manner to wait for the arrival of the train. However, when the train arrived it stopped short of the accustomed stopping place so that the front end of the express car was about ten feet south of the north end of the station building. The entire length of the express car thus remained directly opposite the station building, leaving the doorway accessible only from the 15 foot platform between the ear and the building. This did not afford sufficient space for the plaintiff to back his truck against the doorway at a right angle as it was his custom to do. He asked the fireman to move the train forward so that the doorway would clear the station building, but this request was refused. The plaintiff thereupon drove his truck around the station building and then north onto the platform between the express car and the building. (Rules of the Express Agency forbade backing the truck on the passenger platform.) As plaintiff moved his truck, he saw the conductor and asked him to move the train forward so that the express car would be in its customary location, but the conductor also refused and told the plaintiff to go ahead and do his work. Being unable to back his truck squarely against the doorway, the plaintiff backed it at an acute angle against the express car, with the right rear corner of the truck at the north side of the doorway and the left rear corner about six or seven feet out from the car. To take the packages from the messenger working inside the express car, the plaintiff, facing the south, then straddled the triangular space between the car and the back of the truck, with his left foot on a metal runner along the inside of the doorway on the floor of the car and his right foot on the floor of the truck bed. The floor of the truck bed was three feet and two inches from the ground and the floor of the express car was 15 inches higher. The plaintiff was 49 years of age at the time, he was five feet, nine inches tall and weighed about 180 pounds. That morning there were 20 or 30 express packages to be unloaded. Small packages were handed to plaintiff several at a time. After working in this manner from five to seven minutes and after all of the smaller packages had been handled, the messenger handed him a package weighing about 75 pounds. As he took the box the plaintiff lost his balance, his left foot slipped from the car floor and he fell to the ground, striking his left buttock on the edge of the car doorway and suffering the injuries complained of. It is the plaintiff’s contention that the defendant was negligent in stopping its train so that the express car door was opposite the station and in refusing to move the train forward when requested by plaintiff, because defendant should reasonably have foreseen that if the express car remained opposite the station building, the plaintiff, being unable to back his truck squarely to the doorway, might adopt a more hazardous method of transferring the express and thereby be injured. The District Court, in entering judgment for the defendant, expressed doubt that any negligence on the part of the railroad was shown, but its decision for the defendant was based on the ground that the plaintiff had chosen an obviously dangerous way to work, and, therefore, “[h]is negligent act in placing himself in a dangerous and awkward position was the proximate cause of his injury.” We are constrained to agree with the District Court. Since federal jurisdiction in this case arises by reason of the diverse citizenship of the parties, the law of Illinois is controlling. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The law is well settled in Illinois that one cannot expose himself to a danger which he might have avoided through the exercise of reasonable care for his own safety and then recover damages for a resulting injury. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247; Wilson v. Illinois Cent. R. Co., 210 Ill. 603, 71 N.E. 398; Beidler v Branshaw, 200 Ill. 425, 65 S.Ct. 1086. And while it is true that ordinarily the question of the plaintiff’s own negligence is a matter to be considered by the jury, “* * * yet, when there is no conflict in the evidence, and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant.” Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 275, 170 N.E. 247, 249. In this case we accept, as we must, that version of the accident most favorable to the plaintiff. Nattens v. Grolier Society, 7 Cir., 195 F.2d 449, 450. But, having done that, we are still confronted with the fact that the plaintiff, a man approximately 50 years of age, rather heavily built, knowing that some of the express to be handled might be quite heavy, deliberately chose to straddle the triangular space between the express car and the back of his truck, with his left foot resting on a metal runner which was six inches inside of the car and 15 inches above the bed of the truck where he placed his other foot. In this position the risk of injury was obvious and was recognized by the plaintiff who testified that the position he assumed was an awkward one and that he considered it to be hazardous. Under these circumstances we can see no escape from the conclusion that the plaintiff’s injury was, as a matter of law, the direct result of his own negligence. The plaintiff contends that if he had been working on the ground there would also have been a risk of injury. However, the physical facts do not support that argument. The bottom of the truck bed was only slightly more than three feet off the ground and the floor of the express car was only 15 inches higher. There is no evidence to show, nor any reasonable inference which might be drawn, that it would not have been feasible for the plaintiff to stand firmly on the ground and handle the packages at these heights. No reason appears why the plaintiff could not easily have taken the packages from the messenger who was standing inside the express car and have placed them in the truck, pushing the packages towards the front of the truck when necessary, or why he could not have stacked the express packages on the ground as they were taken from the express car and then have later loaded them into his truck. Of course, either method would have entailed a little more work by plaintiff but it would have accomplished the unloading with equal or greater dispatch than the awkward manner of handling the packages which he attempted. The plaintiff stresses the fact that he was required to do his work promptly and that he was subject to the conductor’s orders. He says that the method he chose for unloading was necessary to avoid delaying the train which was already a few minutes late. But no one could reasonably infer that the work could be done as quickly in the awkward position of straddling the open space between the car door and the truck as it could have been done by plaintiff’s standing firmly on the ground and unloading the express to the ground. The personnel in charge of the train were only interested in having the packages promptly removed from the train. It was immaterial to them how much time the plaintiff might spend in loading the packages into his truck after the train passed on. Nor was it suggested that the plaintiff had been given any specific instructions by any member of the train crew as to the manner in which the express packages were to be taken off of the defendant’s train. For all that appears in the record the plaintiff had full discretion to perform the job of unloading the car in any method or manner he might choose. The plaintiff selected what he apparently considered to be the most convenient method of work for him, although it was obviously the most precarious method. The Supreme Court of Illinois, in Illinois Cent. R. Co. v. Swift, 213 Ill. 307, at page 316, 72 N.E. 737, at page 740, announced the rule governing this situation when it stated: “Where * * * the employee is not directed to do the work in a specific manner, but is given a general order to perform the task, and is himself left to use his own discretion as to the manner in which the work shall be done, and there exists a safe way and a dangerous way, which are equally open to him, if he selects the unsafe method through heedlessness, or because it involves less exertion on his part, and injury to his person results, he cannot recover.” See also Pennsylvania Co. v. Lynch, 90 Ill. 333; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill.App. 555; Southern R. Co. v. Edwards, 5 Cir., 44 F.2d 526. The judgment of the District Court is Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_direct1	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. NEW BRITAIN MACHINE CO., Plaintiff-Appellant, v. W. Lloyd YEO, Administrator, Estate of Joseph H. Hoern, et al., Defendants-Appellees. W. Lloyd YEO, Administrator, Estate of Joseph H. Hoern, et al., Plaintiffs-Appellees, v. NEW BRITAIN MACHINE CO., Defendant-Appellant. Nos. 16211, 16287. United States Court of Appeals Sixth Circuit. March 8, 1966. Roy C. Hopgood, New York City, and Palmer S. McGee, Jr., Hartford, Conn'., for New Britain Machine Co., Milton E. Higgs, Higgs & Higgs, Bay City, Mich., on the brief, John M. Calimafde, Arthur M. Lieberman, Hopgood & Calimafde, New York City, Palmer S. McGee, Jr., Day, Berry & Howard, Hartford, Conn., of counsel. Ferdinand D. Heilman, Saginaw, Mich., for W. Lloyd Yeo and others, Heil-man, Purcell, Tunison & Cline, Saginaw, Mich., on the brief. Before PHILLIPS and CELE-BREZZE, Circuit Judges, and CECIL, Senior Circuit Judge. HARRY PHILLIPS, Circuit Judge. Case No. 16,287 is an appeal by New Britain Machine Company (referred to herein as “New Britain”) from a final judgment rendered against it in the amount of $202,253.51, plus costs and disbursements yet to be taxed. This judgment is based upon royalties on a certain “BV” machine manufactured and sold by New Britain, which uses mechanisms covered by U. S. Patent No. 2,872,-853 (application No. 400,531). Plaintiff s-appellees (referred to herein as “Yeo et al.”) are a group of twenty-four former stockholders of Hoern & Dilts, Inc., a Michigan corporation which was dissolved in 1955, and are the owners of the aforesaid patent as assignees of this corporation. Case No. 16,211 is an appeal by New Britain from an order of the district court dismissing its action against Yeo et al. for the recovery of royalties alleged to have been paid by mistake and without consideration in the amount of $207,193.-36. Jurisdiction in both cases is- based upon diversity of citizenship. This opinion will be devoted to case No. 16,287 except where otherwise indicated. 1) The three contracts at issue This action is for breach of contract. Three contracts are involved, referred to herein as the 1946 contract, the 1950 contract and the 1955 contract. The patent in question, No. 2,872,853, was issued to J. H. Hoern, inventor, February 10, 1959. The application for this patent was filed by Mr. Hoern December 28, 1953. New Britain is a manufacturer and seller of industrial machines. The machine here in question is of a type known as a rotary-cam actuated boring machine. This type of machine falls generally into one of three classes, namely: (1) “indexing” machines, or (2) “continuous” machines, or (3) “non-indexing, non-eontinuous” machines. The BV machine here involved is of the third class, i. e., “non-indexing, non-eontinuous.” In 1946 and prior thereto J. H. Hoern and Carl E. Dilts were engaged in business as a partnership designing and building machine tools. Mr. Hoern is now dead and Yeo is the administrator of his estate. The 1946 Contract On March 28, 1946, these two individuals entered into a licensing agreement with New Britain. This contract stated that the licensors, Hoern and Dilts, “have been and now are developing cam and pneumatic actuated' type boring machines;” that certain improvements in cam and pneumatic actuated type boring machines were disclosed in patent application No. 642,352 (later granted as Patent No. 2,641,146) and in application for U. S. Patents then in course of preparation (this reference is to application No. 671,477 which was filed May 22, 1946, and for which the patent was issued November 24, 1953, as No. 2,659,961); and that the exclusive right and license to manufacture and sell the said boring machines was granted to New Britain, except in certain particulars therein provided. The pertinent licensing language of the 1946 contract is quoted in the margin. Additionally the agreement provided that Hoern and Dilts would disclose to New Britain any invention or improvements relating to the said machines, without further royalty payments. In September 1946, the Hoern and Dilts Corporation, hereinafter referred to as “H & D, Inc.”, was formed, with Messrs. Hoern and Dilts holding a majority of the stock. H & D, Inc. engaged in the manufacture and sale of “indexing” and “continuous” rotary cam actuated boring machines. The 1950 Contract In 1950 New Britain discovered that H & D Inc. was also engaged in the manufacture and sale of a type -of “non-indexing, non-continuous” boring machines. New Britain protested to the individuals and the corporation that this action was an infringement of the exclusive rights granted by the 1946 contract. Two new agreements were executed, one between New Britain and H & D Inc., and the other between New Britain and Messrs. Hoern and Dilts as individuals. The agreement between the two corporations provided that: “2. H & D agrees to cease forthwith and not to resume the manufacture or sale of Non-indexing Type Boring Machines of the general type heretofore manufactured and sold by it and which New Britain contends are covered by the said exclusive license which New Britain did acquire from Joseph H. Hoern and Carl E. Dilts by agreement of March 28, 1946.” The new licensing contract which was executed in 1950 between New Britain and the individuals Hoern and Dilts provided that the 1946 agreement “be amended by substituting therefor” the new agreement. The 1950 contract granted New Britain the exclusive license to manufacture and sell “said Rotary-Cam Actuated Boring Machines, including machines of the general type shown in Blue Print T-300 annexed hereto,” and including improvements thereto described and claimed in patent applications No. 642,352 and No. 671,477 (the same two applications mentioned in the 1946 agreement). Pertinent parts of the 1950 agreement, which will be discussed later in more detail, are set forth in the margin. The 1955 Contract In 1955 New Britain purchased the assets of H & D Inc., and that corporation was liquidated. Two new agreements were entered into: (1) covering the purchase and sale of the assets of the liquidated corporation, which expressly-reserved in H & D Inc. title to its patents and patent applications, and (2) a patent licensing agreement. In the “Representations and Acknowl-edgement” section of the 1955 licensing contract, the parties identified various patents owned by H & D Inc., including the two patents referred to in the 1946 and 1950 agreements; and patent application No. 400,531 (later granted as No. 2,872,853), which is the subject of the present litigation. The granting clause of the 1955 contract is quoted in the margin. Under the language of the 1955 contract quoted in footnotes five and six, patent application No. 400,531 (later granted as patent No. 2,872,853) is included within the term “letters patent and patent rights” upon which royalties were to be paid by New Britain, unless excluded by the “special acknowledgment” paragraph (footnote 7) which is discussed later in this opinion and unless included in the exclusive license granted to New Britain by the 1950 contract. It is reemphasized that application No. 400,531 referred to in footnote 5 was later granted as Patent No. 2,872,853 on February 10, 1959. It is conceded by New Britain that the mechanisms of this patent are used in the BV machine involved in this litigation. The claim of Yeo et al. for royalties is based upon the use of patent No. 2,872,853 with respect to the BV machine. New Britain contends, however, that the exclusive right to this patent was granted to it by Messrs. Hoern and Dilts under the terms of the 1946 and 1950 contracts and that this patent is excluded by the “special acknowledgement” paragraph of the 1955 contract (quoted infra in footnote 7); and it therefore owes no royalties on this BV machine under the 1955 contract. 2) Holding of district court The case was originally tried at various sittings by the late District Judge Frank A. Picard, who died without announcing a decision. Following the death of Judge Picard the case was assigned to District Judge Stephen J. Roth. Thereupon by stipulation it was agreed that the case would be submitted to Judge Roth upon the transcript of the proceedings, arguments and briefs of counsel, and proposed findings of fact and conclusions of law. In rendering a judgment against New Britain, it was the reasoning of the district court that, under the provisions of paragraph (1) (e) quoted in footnote 5, it was stated that at the time of the execution of the 1955 contract H & D Inc. was the owner of patent application Serial No. 400,531, filed December 28, 1953, which was then pending. Judge Roth emphasized that, after listing all the patents and patent applications then owned by H & D Inc., paragraph (1) concluded with this language; “All of the letters patent, patent applications, licenses and other rights referred to in this paragraph (1) shall be referred to hereinafter in the aggregate and for convenience only as ‘letters patent and patent rights.’ ” (See footnote 6). The district judge then pointed out that “paragraph 3 provides for the licensing of the ‘letters patent and patent rights’ ” owned by H & D Inc. and payment of royalties thereon by New Britain. The court then concluded: “The result urged upon the Court by the defendant would require two things: disregarding the plain and explicit language of the 1955 agreement between the parties and interpolating into the 1950 agreement between them, language which is not there. “The Court finds that it was the agreement and the intention of the parties that the defendant pay royalties to Hoern and Dilts, Inc., on the ‘BV’ contour machine, which admittedly uses mechanisms covered by patent application number 400,531.” 8) Is the BV machine within the scope of the 1950 contract? New Britain contends that, under the terms of the 1946 and 1950 contracts, it acquired exclusive rights to all “non-indexing, non-continuous” machines for which Messrs. Hoern and Dilts then had applications pending, and all such machines for which Messrs. Hoern and Dilts thereafter might obtain patents; that the 1946 and 1950 contracts encompassed “non-indexing, non-continuous” machines broadly as a class; that the BV machine here involved falls within the grant of the 1950 contract, even though the application for the patent whose mechanisms are used in this machine was not filed until 1953 and the patent was not issued until 1959; and that the 1955 contract relates exclusively to “indexing” and “continuous” machines, and not to “non-indexing, non-continuous machines” such as the BV machine here involved. In support of this contention, New Britain relies strongly upon the “special acknowledgement” paragraph of the 1955 contract, which is set forth in the margin. This “special acknowledgement” language makes it clear that the 1955 contract was not intended to affect any rights which had been acquired by New Britain under the 1946 and 1950 contracts. If an exclusive license to patent No. 2,872,853 in fact was granted to New Britain by the 1950 contract, it is excluded from the 1955 contract by the terms of the “special acknowledgement” paragraph (footnote 7). If New Britain is correct in its interpretation of the “special acknowledgement” paragraph and the 1950 contract, it necessarily would follow that it would owe no royalties to Yeo et al. under the 1955 contract. The controlling question to be determined then is whether by the 1950 contract Messrs. Hoern and Dilts relinquished and transferred to New Britain, without payment of additional royalties, exclusive rights to all inventions for which they might thereafter apply and be granted patents relating to “non-indexing, non-continuous” types of boring machines. More specifically, the question is whether patent No. 2,872,853 whose mechanisms admittedly are used in the BV machines (for which application was filed in 1953, and was pending in 1955, and which was granted in 1959) is nothing more than an improvement on the earlier patents used in the rotary:cam actuated boring machines licensed to New Britain in 1950. The rule for interpreting a contract assigning future patents and future improvements is well stated in DeLong Corp. v. Lucas, 176 F.Supp. 104 (S.D.N.Y.), affirmed 278 F.2d 804 (C.A. 2), cert. denied. 364 U.S. 833, 81 S.Ct. 71, 5 L.Ed.2d 58, as follows: “It is well settled that an agreement to assign a patent and improvements thereon covers only improvements existing at the time the agreement was entered into unless the language specifically refers to future improvements. The law does not look favorably upon covenants which place ‘a mortgage on a man’s brain, to bind all its future products’. Aspinwall Manufacturing Co. v. Gill, C.C.D. N.J., 32 F. 697, 700. See, also Monsanto Chemical Works v. Jaeger, D.C. W.D.Pa., 31 F.2d 188; American Cone & Wafer Co. v. Consolidated Wafer Co., 2 Cir., 247 F. 335; Allison Bros. Co. v. Allison, 144 N.Y. 21, at page 29, 38 N.E. 956, at page 958. As was said in Allison, to effect an assignment of future improvements to a patent which the inventor may thereafter produce ‘the language of the contract must be very plain and evidence unmistakably that such an agreement was in the mind of the inventor’.” 176 F.Supp. at 127. In Mullins Mfg. Co. v. Booth, 125 F.2d 660, 663 (C.A. 6), this court said: “Courts of equity are loath to give their aid by construction to a contract, the enforcement of which will constitute a mortgage for life on the inventor’s brain, and bind all his future products.” A contract assigning future improvements and future inventions will be enforced only where the language evidencing such an intention is clear and convincing. In Ogden v. General Printing Ink Corp., 37 F.Supp. 572, 577 (D. Md.), the court quoted with approval the following language from Williston on Contracts, Rev.Ed., vol. 5, § 1643A, page 6414: “The governing rule in this class of cases is that where the product of an inventive mind is sought to be appropriated under an agreement to assign to another, the language of the agreement must be clear and show an unmistakable intention that the particular matter covered by the invention or patent is within the intention of the parties.” Such a contract is to be strictly construed against the grant of inventions that may be perfected in the future. Gas Tool Patents Corp. v. Mould, 133 F.2d 815, 818 (C.A. 7); Briggs v. M & J Diesel Locomotive Filter Co., 228 F.Supp. 26, 31 (N.D.Ill.), aff'd, 342 F.2d 573 (C.A. 7); cf. Gonser v. Leland Detroit Mfg. Co., 293 Mich. 196, 291 N.W. 631. We hold that the provisions of the 1950 contract are not sufficiently clear and free from ambiguity to meet the test announced and applied in the foregoing decisions; and that the language of this contract is not so specific as to embrace all future inventions that might be perfected by Messrs. Hoern and Dilts relating to the broad class of all “non-indexing, non-continuous” boring machines. To the contrary, in granting an exclusive license to “said Rotary-Cam Actuated Boring Machines” and future improvements thereon, the 1950 contract (see language quoted in footnote 4) by its terms includes (1) “machines of the general type shown in Blue Print T-300 annexed hereto” (which concededly does not embrace Patent No. 2,872,853 here involved) ; and (2) “improvements thereto, as shown, described and claimed in U. S. applications, Serial No. 642,352, filed January 19, 1946, and Serial No. 671,477, filed May 22, 1946.” The first “whereas” clause in the 1950 contract (footnote 4) limits the term “improvements” on Rotary-Cam Actuated Boring Machines to “certain improvements on said machines * * * shown, described and claimed in Applications for United States Patent, Serial Nos. 642,352 and 671,477.” The granting clause in-eludes “any Letters Patent owned or controlled by Licensors, or either of them, which may be granted on applications now or hereafter filed, and disclosing improvements on or relating to said Boring Machines * * * ” The term “applications * * * hereafter filed” is limited expressly to applications “disclosing improvements on or relating to said Boring Machines.” (Emphasis supplied.) The language of the disclosure clause of the 1950 contract is expressly limited to “any improvements in rotary-cam actuated boring machines of the type herein licensed.” (Emphasis supplied.) New Britain relies on both the 1946 and 1950 contracts. The latter is the controlling instrument defining the license granted to New Britain, since it amends the former contract by rewriting it in its entirety. It is of significance that the 1950 contract contains language that is more restrictive than the 1946 contract in several respects: (a) The granting clause of the 1946 contract contained a provision for “disclosing improvements on or relating to said boring machines and similar machines”. The words “and similar machines” are omitted from the 1950 contract, in which the comparable provision reads: “disclosing improvements on or relating to said Boring Machines.” (Emphasis supplied.) The 1950 contract contains no provision requiring disclosure of improvements on or relating to “similar machines.” (b) The 1950 Contract used the term “rotary cam actuated boring machines” instead of the more general term “boring machines” used in the 1946 agreement. (c) Another significant change between the 1946 contract and the 1950 contract is found in the disclosure clause. Under the 1946 contract, Messrs. Hoern and Dilts agreed to disclose to New Britain ‘‘any inventions, new designs, or methods of production in or relating to boring machines made or owned or controlled by them or either of them,” (emphasis supplied). Under the disclosure clause of the 1950 contract they agreed to disclose only “any improvements in rotary-cam actuated boring machines of the type herein licensed.” (Emphasis supplied.) Thus, the scope of the exclusive license granted by Messrs. Hoern and Dilts to New Britain is more restricted under the 1950 contract than under the broader language of the 1946 contract. When the parties undertook to settle their dispute in 1950, they wrote more restrictive language into their revised agreement, indicating an intention not to make the exclusive grant so broad and all-inclusive as now asserted by New Britain. In order to sustain its contention that Patent No. 2,872,853 comes within the scope of the exclusive license granted by the 1950 contract and accordingly that the patent whose mechanisms are used in the BY machine here in question is an exception within the special acknowledgement paragraph of the 1955 contract (footnote 7), New Britain must establish that this later patent is an “improvement on or relating to” the boring machine covered by Patents Nos. 2,641,146 (application No. 642,352) and 2,659,961 (application No. 671,477), which are the only patent applications identified as improvements to boring machines covered by the 1950 contract. Assuming that there is sufficient ambiguity on this point to permit the introduction of evidence, the burden of proof would be upon New Britain to show that Patent No. 2,872,853, whose mechanisms are used in the BV machine, is an exception under the “special acknowledgement” paragraph of the 1955 contract. In this situation, the law as to the burden of proof is that “A party who seeks advantage of an exception in a contractual stipulation as the basis of his claim is charged with the burden of proving facts necessary to bring himself within such exception.” Davies Flying Service v. United States, 216 F.2d 104, 106 (C.A. 6). To like effect see 17A C.J.S. Contracts § 579, p. 1114. While this is a contract case and not a patent case, we have read the language of the claims of Patent No. 2,872,853. These claims do not demonstrate that this patent is an improvement upon the boring machines covered by Patent Nos. 2,641,-146 and 2,659,961, the application for which is referred to in the 1950 contract. The application for Patent No. 2,872,853 makes reference to four earlier United States patents and three foreign patents by number, but no reference is made to the two applications identified in the 1950 contract. New Britain’s own advertising of the BV machine contradicts its contention that this machine is nothing more than an improvement over the boring machines licensed to it by the 1950 contract. The trade magazine “Machinery,” in its November 1960 issue, published an advertisement by New Britain regarding the BV machine, containing the following language: “Beyond a certain point, continued refinement of existing designs in machine tools ceases to make an appreciable contribution to performance. Thus in designing our New Series of Vertical Precision Boring Machines, we have incorporated several completely new design concepts to provide improved performance and greatly increase overall usefulness. * * * “In order to take the fullest advantage of the precision inherent in cam control, long linkages between cams and slides have been eliminated. A pair of cams is mounted on a common shaft which is carried within the vertical slide. Since all slide actuating forces are contained in the vertical slide, both cams are directly adjacent to the slides they control and no outside forces are imposed on the slide ways. The result is maximum rigidity for heavy cuts coupled with extreme accuracy for close tolerance work. “This unique and eminently workable approach to contour turning and boring results in the highest order of accuracy on even the most complex pieces. * * * ” In the issue of the trade magazine “The American Machinist” dated January 11, 1960, and March 21, 1960, New Britain described its BV machine in part as follows: “New Britain Cam Actuated Vertical Precision Boring Machines offer an entirely new principle for more accurate boring and turning, plus compact exterior design and fast tooling. Bough cuts and finish cuts within close tolerances on the same set-up are characteristic. Standard models are available with maximum swing from 12" to 17%" in 10 or 15 horsepower. “Here are a few of the major new developments incorporated in these unusual machines. * * * ” Brochures issued by New Britain in 1958 and 1959 include the following language in describing the BV machine: “This unique captive cam shaft feature, through the elimination of long actuating linkage, has resulted in an extremely compact accessible and simplified design with the obvious important advantages in maintenance and repairs.” New Britain’s president testified as a witness and undertook to establish that the BV machine here involved is an improvement on the boring machines licensed by the 1950 contract. He further testified, however, that New Britain’s above-quoted advertising was correct in describing the BV machine in question as offering “an entirely new principle for more accurate boring and tuning.” We reemphasize that the 1955 contract expressly mentioned Patent Application No. 400,531, filed December 28, 1953, upon which Patent No. 2,872,853 thereafter was issued, and listed it among the patents and patent applications owned by H & D Inc. This patent application is included in general terms among the “letters patent and patent rights” (footnote 6) upon which a non-exclusive license was’ granted to New Britain in 1955 and for which royalties were to be paid. Since express language excluding this patent is not to be found in the “special acknowl-edgement” paragraph or elsewhere in the 1955 contract, we cannot assume that the parties intended to make an exception in the “special acknowledgement” paragraph as contended by New Britain. This patent application already was in existence at the time the 1955 contract was executed, having been filed two years earlier. If the parties had intended for the “special acknowledgement” paragraph to apply to this patent, assuredly they would have said so. We hold that New Britain has not established that the BV machine here in question and Patent No. 2,872,853 come within the 1950 contract or the “special acknowledgement” paragraph of the 1955 contract. Accordingly we agree with the finding of the district court that New Britain is liable to Yeo et al. for royalties on this machine. k) The amount of the judgment Under date of December 6, 1963, following the filing of his opinion, Judge Roth entered an order stating that the court: “Finds, in conformity with said opinion, that it was the agreement and the intention of the parties that the defendant pay royalties to Hoern & Dilts, Inc., on the ‘BV’ contour machine,'which admittedly uses mechanisms covered by patent application number 400,531; “The Court further finds that the rights of said Hoern & Dilts, Inc., were duly assigned to plaintiffs upon its dissolution and as former stockholders of said company; “It is therefore, ordered that the parties shall forthwith make an accounting between them to determine the amount of royalties due to date, together with interest at the rate of 5% computed from the due date of any royalty found to be due, and this Court retains jurisdiction of this matter pending such accounting and any problems relating to it.” Pursuant to this order, on January 28, 1964, New Britain filed an accounting which was sworn to by its president. This accounting contained the figures upon which the judgment was finally entered, except for minor corrections. After a dispute had arisen between the parties concerning the accounting, another hearing was held at which Judge Roth suggested the appointment of a master to take an accounting. Counsel for New Britain responded that “There is no need for a Master,” saying: “I think you misunderstood me when I said this was a massive job. What I was referring to as a massive job is the report which we submitted last January. This involved going into all transactions under the 1955 contract, all of our varieties of machines, their variations, the patents and patent claims. This job is not called for according to your Hon- or’s rulings you just handed down. The job has been done as a matter of fact, all except for any machines which may have been sold since the end of 1963. As a matter of fact, one entire separate section of our report was plainly identified with BV transactions, so that job was done. “There is no need for a Master. If it is your pleasure as you have just stated to have an accounting for the BV machines we even included a schedule of what the interest would be as your Honor requested it and that interest was specific to the BV machines. So that the job is done and we can easily undertake to complete it up to the date of this hearing today.” It was agreed that plaintiffs would send two men to the Connecticut offices of New Britain in order to facilitate the matter of accounting and avoid the necessity of appointing a master. New Britain’s attorney thereafter wrote a letter to the attorneys for Yeo et al., dated July 8, 1964, stating that only a few minor errors had been found in the previous account and “there would be a great savings of time and effort if the newly presented accounting for BV machines were merely to comprise a reproduction of the previous report.” (This reference is to the sworn accounting filed January 28, 1964.) Thereupon, Yeo et al. made a report to the court as to the purported agreement of the parties in Connecticut and asked that a judgment be entered in the sum of $171,342.42 plus interest in the sum of $28,620.98. At a subsequent hearing on September 21, 1964, extended arguments were made as to whether the judgment should be based on (1) the figures set forth in the sworn accounting filed by New Britain January 28, 1964, or (2) on the figures set forth in New Britain’s “corrected accounting” hereinafter discussed. Yeo et al. contended that royalties on the BV machine should be computed at the rate of five per cent of net sales under Section 4(b) of the 1955 contract, which is applicable to “Hoern & Dilts” machines. New Britain contended that the correct basis of computation was five per cent of the cost of mechanisms under Section 4(c), which is applicable to machines other than “Hoern & Dilts” machines. Judge Roth thereupon asked the attorney for New Britain whether, assuming the correct measure of royalties to be five per cent of net sales, as provided in Section 4(b) applicable to “Hoern & Dilts” machines, counsel would agree that the figures are accurate as set forth by New Britain in its sworn accounting of January 28,1964, as subsequently corrected by agreement of the parties. The answer of counsel was “Yes.” Thus, the amount of the judgment entered by the district court is based upon figures set forth in a sworn accounting filed by New Britain and thereafter corrected and substantially verified by the parties. We hold that the district court’s finding of the amount of royalties due is supported by the evidence. 5) The “corrected accounting” On August 20, 1964, shortly before the judgment was entered, New Britain filed a “corrected accounting”, alleging that the BV machine here involved was not a “Hoern & Dilts” machine, that New Britain had made a mistake by computing royalties at five per cent of net sales as provided under Section 4(b) for “Hoern & Dilts” machines, and that the correct amount owing under Section 4(c) of the 1955 contract was in the approximate sum of $7000, rather than the much larger sum indicated in its previous accounting. This “corrected accounting” was not filed until after the ease had been tried over a period of more than four years on the theory that the BV machine in question is a “Hoern & Dilts” machine and after the earlier accounting had been submitted by New Britain on this theory. Interrogatory No. 50, which was filed early in the proceedings, is as follows: “Have you used any of the mechanisms embodying any of the six claims which were allowed in Patent No. 2,872,853 on any other machine other than the so-called Hoern & Dilts machines? If so, state upon what machines they have been used.” (Emphasis supplied.) The answer was: “No.” Both the original accounting and the “corrected accounting” were before the district court at the time the judgment was entered. We cannot say that the district judge erred in entering judgment upon the figures set forth in the original accounting as substantially verified by agreement of the parties, rather than accepting the “corrected accounting” based upon a belated change in New Britain’s contention which was contrary to the positions and conduct of the parties throughout the trial. 6) New Britain’s counterclaim As a part of its sworn accounting of January 28, 1964, New Britain asserted that it had reexamined the entire history of its operations under the 1955 contract in the light of the opinion of the district court, and found that it had made overpayments of royalties totaling $207,-193.36. On April 17, 1964, New Britain submitted a motion for leave to amend its answer and file a counterclaim in the amount of $207,193.36, which was denied by the district court. The complaint of Yeo et al. was filed March 30, 1960, and New Britain’s motion to amend its answer and file a counterclaim was not filed until April 17, 1964, after the prolonged trial had been completed and a decision on the merits adverse to New Britain had been announced by the district court. The record shows that at a hearing on March 16, 1962, Judge Picard inquired whether or not any counterclaim would be filed and that counsel for New Britain replied, “No counterclaim.” Under these circumstances we cannot say that the district court abused its discretion in denying New Britain’s motion to amend its answer and file a counterclaim so late in the proceedings. Shwab v. Doelz, 229 F.2d 749, 753 (C.A. 7); Runkle v. Nong Kimny, 105 U.S.App.D.C. 285, 266 F.2d 689, 693. 7) Case No. 16,211 In the second case New Britain sued Yeo et al. for the recovery of royalties alleged to have been paid by mistake and without consideration in the amount of $207,193.36. This action concededly is based upon the same contentions as outlined above with respect to its “corrected accounting” and counterclaim and seeks to recover identically the same amount as asserted in the counterclaim. Yeo et al. filed a motion to dismiss which was sustained by the district court. We hold that the right of action which New Britain undertakes to assert by its separate action in case No. 16,211 falls within the compulsory counterclaim provisions of Rule 13(a), Federal Rules of Civil Procedure. The claim: (1) arises out of the transaction or occurrence that is the subject matter of the claim of Yeo et al.; (2) was matured (at least in substantial part) and owned by New Britain at the time Yeo et al. served their complaint in case No. 16,287; (3) did not require for its adjudication the presence of third parties of whom the court could not acquire jurisdiction; and (4) was not, at the time the original action was commenced, the subject matter of another pending action. 1A Barron & Holtzoff, Federal Practice and Procedure, § 394 (Wright Ed.). “This rule is mandatory. It requires that such a counterclaim be pleaded and adjudicated or else all right of action thereon is foreclosed.” Ibid at p. 565. In Southern Construction Co. Inc. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 110, 9 L.Ed.2d 31, the Supreme Court said: “The requirement that counterclaims arising out of the same transaction or occurrence as the opposing party’s claim ‘shall’ be stated in the pleadings was designed to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters. The Rule was particularly directed against one who failed to assert a counterclaim in one action and then instituted a second action in which that counterclaim became the basis of the complaint. See, e. g., United States v. Eastport S. S. Corp., 2 Cir., 255 F.2d 795, 801-802.” Having failed to file a timely counterclaim in case No. 16,287 until after the district judge had announced his decision on the merits, New Britain is now foreclosed from asserting the same claim in the form of a separate action. Under the circumstances, we hold that the district court did not err in dismissing the complaint in case No. 16,211. New Britain relies upon Rule 13(f). We previously have held that Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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 "financial institution". Your task is to determine what subcategory of business best describes this litigant. Sarah Maxine LANEY, Plaintiff-Appellant, v. CONTINENTAL INSURANCE COMPANY, Defendant-Appellee. No. 84-8328. United States Court of Appeals, Eleventh Circuit. April 15, 1985. Charles L. Day, Marietta, Ga., for plaintiff-appellant. James M. Poe, Atlanta, Ga., for defendant-appellee. Before RONEY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge. ALBERT J. HENDERSON, Circuit Judge: Sarah Maxine Laney instituted this action to recover benefits under an insurance policy issued by Continental Insurance Company (Continental) insuring her husband, Pat Laney, against death caused by accident. She appeals from the order of the United States District Court for the Northern District of Georgia granting Continental’s motion for summary judgment and denying her motion for partial summary judgment. We find that the district court did not err in concluding that the policy language “caused by accident” comprehended an “accidental means” policy under Georgia law thereby precluding recovery for Mrs. Laney. Accordingly, we affirm. On July 6, 1982, Pat Laney died at his home in Cobb County, Georgia. Because the death was sudden and unexpected, the Cobb County Medical Examiner’s office performed an autopsy on Laney on July 7, 1982. A sample of Laney’s blood tested by the Georgia Bureau of Investigation Division of Forensic Sciences evidenced a positive blood alcohol level of .47 grams perv cent. The death certificate listed “acute ethanol intoxication (poisoning)” as the cause of death. At the time of his death, Laney was insured against death caused by accident under a policy issued by Continental in the principal sum of $150,000.00. The policy covered “loss ... resulting directly and independently of all other causes from bodily injuries caused by accident occurring while this policy is in force.” Mrs. Laney was the named beneficiary of the policy. After Continental refused to pay benefits under the policy pursuant to demand, Mrs. Laney brought this action in the State Court of Cobb County. Continental subsequently removed the case to the district court on diversity of citizenship grounds. After entering into a stipulation of facts, both parties filed motions for summary judgment. Neither party disputed that Laney voluntarily and intentionally consumed the whiskey and beer that caused his death. It was also undisputed that there was no evidence to suggest that Laney intended death to result from the consumption of the alcohol. The district court granted Continental’s motion and denied Mrs. Laney’s motion. The issue before us on appeal concerns the construction to be given the policy language “caused by accident.” Georgia law distinguishes between the terms “accidental injury” and “injuries resulting from accidental means.” Jackson v. National Life & Accident Insurance Co., 130 Ga.App. 208, 209, 202 S.E.2d 711, 712 (1973); Johnson v. National Life & Accident Insurance Co., 92 Ga.App. 818, 819, 90 S.E.2d 36, 37 (1955). As the Georgia Court of Appeals stated in Johnson: There is a very definite distinction between ‘accidental injuries’ and ‘injuries resulting from accidental means.’Where an injury is unexpected but arises from a voluntary action it is an ‘accidental injury,’ but for an injury to result from accidental means, it must be the unexpected result of an unforeseen or unexpected act which was involuntarily and unintentionally done. 92 Ga.App. at 819, 90 S.E.2d at 37 (citations omitted).- “ ‘Where an unusual or unexpected result occurs, by reason of the doing of an intentional act, with no mischance, slip or mishap occurring in doing the act itself, the ensuing injury or death is not caused by accidental means.’ ” Jackson, 130 Ga.App. at 209, 202 S.E.2d at 712 (citation omitted). Mrs. Laney argues that “caused by accident” is the legal and grammatical equivalent of “accidental injury,” thereby requiring only that the result, i.e., death, be unexpected. Continental, on the other hand, maintains that the policy language must be equated with “accidental means” such that both the cause of the harm, i.e., ingestion of alcohol, and the result must be unexpected, accidental or unintentional. If Georgia insurance law construes “caused by accident” to be the same as “accidental means,” the district court’s grant of summary judgment was proper because the parties do not dispute that Laney voluntarily and intentionally consumed the alcoholic beverages that caused his death. The appellant contends that the decision of the Georgia Court of Appeals in Johnson establishes that “caused by accident” is the equivalent of “accidental injury.” In Johnson, the insured died following a voluntary injection of 600,000 units of penicillin. The plaintiff-appellant, the beneficiary of six insurance policies issued to the insured, brought suit to recover benefits under these policies. Three of the policies provided extra benefits for the death of the insured if death resulted from “bodily injuries effected solely through external, violent and accidental means.” One of the policies provided indemnity for “death by accidental means.” The two remaining policies paid benefits for “death due to bodily injury which was ‘effected accidentally and through external and violent means.’ ” The trial court sustained a general demurrer to the petition. On appeal, the court of appeals affirmed the trial court’s judgment with respect to those policies which required that death be the result of accidental means. The appeals court, however, held that the trial court erred in sustaining the demurrer as to the two policies covering death “effected accidentally and through external and violent means.” In the court’s view, the petition alleged sufficient facts to show that the insured’s death was accidental. Id. 92 Ga.App. at 820, 90 S.E.2d at 38. Mrs. Laney claims that the effect of the Johnson decision was to equate the term “effected accidentally” with “accidental injury,” such that only the result of the action need be unexpected or unforeseen. As “effected accidentally” and “caused by accident” are synonymous, the appellant urges that the district court erred in holding that “caused by accident” includes death by “accidental means.” Although Johnson would seem to indicate a view contrary to that of the district court, a more recent decision of the Supreme Court of Georgia read the “accidental means” test into a policy providing coverage for losses arising “as a result of bodily injury caused solely by accident.” In Continental Assurance Co. v. Rothell, 227 Ga. 258, 181 S.E.2d 283 (1971), the insured was admitted to a hospital with a broken neck after police found him slumped on a sidewalk. The death certificate listed traumatic neck injury as the cause of death. The plaintiff-appellee sued on a life insurance policy that furnished benefits for death resulting from injury “caused solely by accident.” The Georgia Court of Appeals affirmed the trial court’s grant of the plaintiff’s motion for summary judgment. The Georgia Supreme Court reversed, indicating that in order to recover the plaintiff had the burden to prove that death resulted from accidental means. See Phillips v. Home Security Life Insurance Co., 632 F.2d 1302, 1304 n. 1 (5th Cir. Unit B 1980) (discussion of Rothell decision). Other courts have adopted this same reasoning. In Thomason v. United States Fidelity & Guaranty Co., 248 F.2d 417 (5th Cir.1957), the former Fifth Circuit Court of Appeals held that “caused by accident” had the same meaning as the phrase “accidental means” for purposes of interpreting an insurance contract covering property damage. The court reached this conclusion in the context of Alabama law, which also recognized a difference between an “accidental result” and a “result caused by accidental means.” Id. at 419. Accord Lee v. Fidelity and Casualty Co., No. C74-2385A, slip op. at 3 (N.D.Ga.1976) (policy covering death caused by accident), rev’d on other grounds, 567 F.2d 1340 (5th Cir.1978); Baker v. American Insurance Co., 212 F.Supp. 353, 357 (E.D.S.C.) (policy covering property damage caused by accident), aff'd, 324 F.2d 748 (4th Cir.1963). Leading commentators on insurance law also equate “caused by accident” and “accidental means.” See 10 G. Couch, Cyclopedia of Insurance Law § 41.29 (2d ed. 1982); 1A J. Appleman, Insurance Law and Practice § 363, at 497 (1981). Finally, grammatical construction suggests that the two terms, “caused by accident” and “accidental means,” are synonymous and not the same as “accidental injury.” In the phrase “accidental means,” the word accidental is an adjective describing the quality of the events precipitating the ultimate result. The focus is on the occurrence or happening which produces the result, not the result itself. Similarly, in the phrase “bodily injuries caused by accident,” the qualifier limits the cause of the harm to those circumstances where the result, i.e., the injury,, is due to an unexpected, unforeseen or unintentional event. In the phrase “accidental injury,” however, “accidental” merely refers to the character of the injury or harm, i.e., the end result, and not the act causing the injury. Given this construction of the policy term, it is evident that the defendant was entitled to judgment as a matter of law. Mrs. Laney does not dispute that her husband intentionally and voluntarily drank the alcohol that caused his death. Nor does she contend that some mischance, slip or mishap occurred during his consumption of the whiskey and beer to cause him to consume more than he intended. Although the result of his drinking was unexpected, the act of drinking was intentional. Georgia law makes it clear that such conduct is not covered by an “accidental means” policy. See, e.g'., Jackson v. National Life & Accident Insurance Co., 130 Ga.App. 208, 202 S.E.2d 711 (1973) (death from heroin overdose occurring suddenly after voluntary injection of narcotics not covered by accidental means policy); Davison v. National Life & Accident Insurance Co., 106 Ga.App. 187, 126 S.E.2d 811 (1962) (death by asphyxiation due to dentist’s voluntary and intentional inhalation of nitrous oxide not death by accidental means); Johnson v. National Life & Accident Insurance Co., 92 Ga.App. 818, 90 S.E.2d 36 (1955) (death due to deceased’s sensitivity to penicillin not death by accidental means where deceased consented to injection of penicillin); Thompson v. Prudential Insurance Co., 84 Ga.App. 214, 66 S.E.2d 119 (1951) (death not due to accidental means where deceased died while playing Russian Roulette). The judgment of the district court granting summary judgment to Continental Insurance Company is AFFIRMED. . 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 decided prior to October 1, 1981. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_usc1sect	74	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 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". BARTLESVILLE ZINC CO. v. MELLON, Director General of Railroads. No. 4620. Circuit Court of Appeals, Seventh Circuit. Feb. 24, 1932. Harry C. Barnes, of Chicago, Ill., for appellant. A. A. McLaughlin, of Des Moines, Iowa, and H. W. Davis and R. S. Outlaw, both of Chicago, Ill., for appellee. Before ALSCHULER and SPARKS, Circuit Judges, and LINDLEY, District Judge. LINDLEY, District Judge. Appellant, plaintiff in the trial court, a shipper, brought suit in assumpsit for the recovery of demurrage charges on interstate shipments paid by plaintiff to the Director General of Railroads during federal control, claiming that such charges were illegally assessed and collected. Appellee, a defendant below, is the governmental agent charged with final settlement of details of the national control of railroads. Defendant’s demurrer to the declaration was sustained, and plaintiff, electing to stand upon its declaration, appeals from a judgment entered dismissing the suit. Viewed as a suit against the government agent to recover at law for an action arising out of operation of the railroads by the government, under section 206 (a) of the Transportation Act 1920 (41 Stat. 461, 49 USCA § 74 (a), it is clear that the District Court was without jurisdiction and rightfully dismissed the action. The act referred to provided that such actions should not be brought later than two years after passage of the law (1920). The demurrage charges sought to be accrued were paid to the Director General in the year 1918. The present suit was instituted on December 14, 1929. Inasmuch as such a suit is in effect an action against the government, it ceases to possess legal life if the conditions of the consent to sue are not complied with. Suitors may not bring actions against the United States without the latter’s consent, and the limitations placed upon such permission are not mere statutes of limitation, but conditions precedent to the right to sue. After the expiration of the two-year period, plaintiff had no consent to sue, and the court no jurisdiction to entertain its complaint. Davis v. Donovan, 265 U. S. 257, 44 S. Ct. 513, 68 L. Ed. 1008; Dupont, etc., Co. v. Davis, 264 U. S. 456, 44 S. Ct. 364, 68 L. Ed. 788; Flint River, etc., R. Co. v. Mellon, 58 App. D. C. 35, 24 F.(2d) 610; Knickerbocker Fuel Co. v. Mellon (C. C. A.) 22 F.(2d) 500; United States ex rel. Rauch v. Davis, 56 App. D. C. 46, 8 F.(2d) 907; Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638, 38 S. Ct. 408, 62 L. Ed. 914; Kansas City Southern Railway Co. v. Wolf, 261 U. S. 133, 43 S. Ct. 259, 67 L. Ed. 571. But appellant insists that it is entitled to recover under section 206 (c), which provides that complaints for reparation for collection of illegal rates may be filed with the Interstate Commerce Commission within one year, or within two years and six months after the termination of federal control in the District Court against the federal agent, and that it may maintain this suit to review the action of the Commission, refusing the relief prayed. 42 Stat. 393 (49 USCA § 74 (e). Under the act, the Commission is clothed with the same jurisdiction as it has under the Interstate Commerce Act. Section 9 of the latter provides that claims of .such character may be filed with the Commission or made the basis for suit in the United States District Court, but that the claimant shall not have the right to pursue both of the remedies, and must elect which of the two methods it will adopt. 24 Stat. 382 (49 USCA § 9). On May 7, 1920, appellant filed with the Commission a complaint praying for reparation of the alleged overcharges now in suit. After hearing, that body rendered its decision, finding that the charges were not illegal and dismissing the complaint. Various proceedings were had before the Commission thereafter, until on November 20, 1927, it reopened the matter and on December 5, 1927, filed its supplemental report confirming its original findings and order. A petition filed in the Supreme Court of the District of Columbia seeking a writ of mandamus to compel the Commission to enter an award of reparation as prayed failed. An appeal to the Court of Appeals likewise met with defeat, Bartlesville Zinc Co. v. I. C. C., 58 App. D. C. 316, 30 F.(2d) 479, and petition for certiorari was denied by the Supreme Court April 22, 1929, 279 U. S. 856, 49 S. Ct. 351, 73 L. Ed. 997. Section 9 of the Interstate Commerce Act was before the Supreme Court in Standard Oil Co. v. U. S. et al., 283 U. S. 235, 51 S. Ct. 429, 431, 75 L. Ed. 999, and in affirming the decision of the lower court (D. C.) 41 F.(2d) 836, the former said: “Section 9 of the Interstate Commerce Act, c. 104, 24 Stat. 370, 382 (U. S. C., title 49, § 9 [49 USCA § 9]), provides that a claim for damages against a common carrier may be brought before the Commission by complaint, or by an action in a federal district court of competent jurisdiction, but that the claimant or claimants 'shall not have the right to pursue both of said remedies, and must in each ease elect which one of the two methods of procedure herein provided for he or they will adopt.’ Having elected to proceed and having proceeded to a determination before the Commission, appellant was, by force of this provision, precluded from seeking reparation upon the same claims by the alternative method of procedure.” The language is directly applicable to the ease at bar. The statute forbids the present action after the exercise of appellant’s option to seek relief before the Commission. But appellant insists that the Commission erred in its findings and conclusions and has since so admitted. We do not so understand the references cited, but, were it true, this court is without jurisdiction to review the decision even though there were palpable error of law or evidence of arbitrary action. Authority for such review must have its origin in legislative enactment, and the Congress has as yet granted to courts the right to review only such orders of the Commission as are affirmative in character. Judicial Code § 24 (28), 28 USCA § 41 (28). There has been created no right of judicial review of orders entered in pursuance of the exercise of the Commission’s jurisdiction wherein it refuses to grant relief. Thus the Supreme Court said in Procter & Gamble Co. v. U. S., 225 U. S. 282, 32 S. Ct. 761, 765, 56 L. Ed. 1091: “Giving to these words their natural significance we think it follows that they confer jurisdiction only to entertain complaints as to affirmative orders of the Commission; that is, they give the court the right to take cognizance, when properly made, of complaints concerning the legality of orders rendered by the Commission, and confer power to relieve parties in whole or in part from the duty of obedience to orders which are found to be illegal. No resort to exposition can add to the cogency with which the conclusion stated is compelled by the plain meaning of the words themselves.” See, also, Manufacturers’ Railroad Co. v. U. S., 246 U. S. 457, 38 S. Ct. 383, 62 L. Ed. 831. In Southern Transportation Co. v. I. C. C., 60 App. D. C. 49, 50, 47 F.(2d) 411, 413, the court said: “In other words, it limited the jurisdiction of the courts to intervene merely as to affirmative orders. It follows, therefore, that if the court were to suspend an order of the commission dismissing an application for reparation and enjoin an award thereof, as prayed for in this case, it would be in direct contravention to the original purpose and intent of the Commerce Act.” It is clear that the contentions of appellant cannot be sustained, that the District Court had no jurisdiction, and that the judgment must be and is affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49? Answer with a number. Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. UNITED STATES of America v. Claude CARTER. No. 6037. Circuit Court of Appeals, Ninth Circuit. March 12, 1930. Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge. PER CURIAM. Ordered appeal dismissed, and mandate issued forthwith pursuant to stipulation. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. LOUISIANA SOUTHERN RY. CO. v. ANDERSON, CLAYTON & CO. No. 13143. United States Court of Appeals Fifth Circuit. Oct. 3, 1951. Rehearing Denied Nov. 7, 1951. St. Clair Adams, Jr., New Orleans, La.,, for appellant. Geo. S. Wright, Dallas, Texas, J. Raburn Monroe, Nicholas Callan, New Orleans, La.,, for appellee. Before HOLMES, BORAH, and RUSSELL, Circuit Judges. RUSSELL, Circuit Judge. The appellee, who, by our opinion, lost the fruits of the victory and judgment it had obtained in the trial Court, strenuously-insisted by motion for rehearing that our determination that there was, in the trial Court, no serious effort to establish the liability of the defendant-carrier as a common-carrier at common law evidenced a misconception and was erroneous. In support of this contention, appellee procured from the trial Court an order directing the transmittal of specified supplemental record to this Court to clarify the “difference [which] has arisen as to whether the record truly discloses what occurred in the District Court.” This “supplemental record” consists of a memorandum and the trial briefs of the parties, as well as excerpts from the oral argument of counsel at the conclusion of the trial, and a certificate from the official court reporter correcting an inaccuracy in his transcript. The complaint is not so much of error in our decision as in our refusal to adjudge “the independent liability of defendant as a common carrier.” The Court granted the motion for rehearing in order to give appropriate consideration to the complaint that a material question had not been decided, directing that such rehearing be upon briefs only. Upon consideration of the briefs of the parties, as well as the “supplemental record”, to which no objection has been made, (save that the appellant insists that the judgment of a trial Court must find support in fact and law rather than in mere argument), we perceive a basis for a different view of plaintiff’s contentions in the trial Court, and, accordingly, now consider the question whether the judgment in its favor is legally supported as predicated upon the independent liability of the switching carrier as a carrier in possession of an interstate shipment at the time of loss when measured by its common law liability. As held in our original opinion, the switching carrier could not be held liable for antecedent loss for the provisions of the Newton Amendment to the Carmack Amendment of the Interstate Commerce Act evidences the Congressional intent “that a switching carrier should not be subjected to the liability for any antecedent loss or damage of either the initial, connecting, or delivering carrier.” [187 F.2d 910.] However, it is true, of course, that the common law liability of a carrier for a loss occurring on its own line is neither increased nor diminished by the statute, although it is equally true that in instances within the terms of the statute the initial or delivering carrier may be held liable for losses which do not so occur. However, as ruled by our original opinion, a switching carrier is not a “delivering carrier” subject to the statutory liability. That it is engaged in interstate transportation in engaging to make delivery for the last line-haul carrier does not, and can not, consistently with the statutory scheme, make it responsible for any loss or damage which does not occur while the goods are in its possession. A shipper who chooses to assert his claim for liability against such a switching carrier must, in order to recover, prove facts sufficient to establish the independent liability of such carrier. What, then, without regard to the statute, is the independent liability of a switching carrier of an interstate shipment? We think the answer is plain and is made evident by the established principles, to which we have referred, that the provisions of the Interstate Commerce Act, above referred to, neither increases nor diminishes the liability of a common carrier for a loss occurring on its own line. At common law the common carrier is held to strict accountability, being absolutely liable for loss or .damage for goods surrendered to its custody without regard to the exercise of due care, unless, of course, the damage flows from an excepted cause. “The duty of a common carrier is to transport and deliver safely. He is made, by law, an insurer against all failure to perform this duty, except such failure as may be caused by the public enemy, or by what is denominated the. act of God.” It was conceded in the trial Court that the provisions of the bills of lading under which the shipments moved were binding upon the switching carrier. The introduction in evidence of such bills of lading established a prima facie case of receipt by the switching carrier of the shipments in apparent good order. It was undisputed that the plaintiff was the owner of the cotton, that the cars containing it were delivered to the switching carrier, and that there was failure of delivery and delivery in damaged condition. As one of' its defenses, the carrier contended that the cotton must have been on fire at the time of delivery to it, but upon the trial, because of the absence of a witness by whom it was proposed to prove the “qualities of cotton”, this defense was expressly abandoned. Therefore, as against the prima facie case made by the plaintiff there was no remaining defense asserted except the carrier’s stipulated freedom from negligence. This was not, standing alone, sufficient to relieve the defendant-carrier from liability. We are asked to take judicial cognizance of the fact that cotton is not subject to spontaneous combustion 'and that the shipment must have contained “a fire-packed bale”. But in view of the fact that the defendant has already asserted the defense as one to be established by evidence and then expressly abandoned it, we are unwilling to set aside .the findings of the trial Court upon this ground. While, in some respects, the imposition of liability upon the defendant under 'the circumstances here present may seem to. present “a hard case”, such circumstances did not require the trial Court to find that the actual cause of the loss (the origin of the fire) occurred prior to the receipt of the shipment by the defendant. Especially is this so in view of the abandonment of this contention by the defendant. The findings of fact and conclusions of law of the trial Court, when considered as made in adjudging the contention .that the defendant was liable for a loss occurring upon its own lines, as we now deem proper to so. view the judgment, find adequate support in law and in fact. Accordingly, in now ruling upon the question, which in our original opinion we declined to determine, that is, the independent liability of defendant as a common carrier, we withdraw our former judgment and here adjudge that the judgment of the trial Court should be, and the same is Affirmed. . Reported in 187 F.2d 908. Reference thereto will reveal the material facts in the case.. . We remark that appellee’s complaint of the Court’s directing it to be the mover by brief upon the argument is without merit since it was then the losing party in this Court. . 49 U.S.C.A. \| 20, subd. (11). . Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314; Cincinnati, New Orleans & Tex. Pac. Ry. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022; Cf. Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 94 L.Ed. 698. . Bank of Kentucky v. Adams Express Co., 93 U.S. 174, 181, 23 L.Ed. 872; Hall & Long v. The Railroad Companies, 13 Wall. 367, 372, 80 U.S. 367, 372, 20 L.Ed. 594; Commodity Credit Gorp. v. Norton, 3 Cir., 167 F.2d 161, 164, and citations; Acme Fast Freight v. Chicago, M., St. P. & P. R. Co., 2 Cir., 166 F.2d 778, and citations. . Cf. Chicago & N. W. Ry. Co. v. C. C. Whitnack Produce Co., 258 U.S. 369, 372, 42 S.Ct. 328, 66 L.Ed. 665. 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_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES of America, Appellee, v. Alfred GLASS, Appellant. No. 84-1807. United States Court of Appeals, Eighth Circuit. Submitted March 15, 1985. Decided May 7, 1985. Rehearing and Rehearing En Banc Denied June 7, 1985. Springfield Bladwin, St. Louis, Mo., for appellant. Michael K. Fagan, Asst. U.S. Atty., St. Louis, Mo., for appellee. Before HEANEY and ARNOLD, Circuit Judges, and HANSON, Senior District Judge. The Hon. William C. Hanson, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation. ARNOLD, Circuit Judge. Alfred Glass has been convicted on his plea of guilty of being a convicted felon in possession of a firearm and of possessing an unregistered sawed-off shotgun. He was sentenced to two years on the first count and ten years on the second count (the maximum allowed by statute). He then moved for leave to withdraw his guilty plea, arguing that the government, while stating on the record the facts it would seek to prove at trial if the case were to go to trial, had not mentioned any evidence to show that the firearm in question had moved in interstate commerce, an essential element of the crime of possession of a firearm by a convicted felon. He also argued that the District Court sentenced him harshly and was prejudiced against him because of his race. (Both the district judge and the defendant are black, and defendant’s theory is that the judge treated him more severely because of his desire to deter crime in the black community.) This motion was denied, and defendant appealed. We noted that the government had omitted to mention interstate commerce during its statement of intended proof, but we remanded to give the United States a chance, in a reopened hearing before the District Court, to show that it did indeed have evidence to satisfy this element of the crime. United States v. Glass, 720 F.2d 21 (8th Cir.1983). We expressed no view on the allegation of prejudice, leaving that for further development on remand. The additional hearing has now been held, and the motion for leave to withdraw the plea.of guilty has again been denied. Glass appeals, arguing, among other things, that the judge was prejudiced against him, that testimony at the eviden-tiary hearing by the lawyer who represented him at the time of his plea of guilty was a breach of the attorney-client privilege, and that the gun was not in or affecting commerce because it was abandoned property. We affirm. We have read the transcript of the sentencing, as well as the record of the proceedings on remand after our first opinion, and we are convinced that the judge was not prejudiced against Glass. The District Court expressed its repugnance to crime in general, especially to crime in the black community and to gun crimes, but in doing so it merely voiced out loud feelings that many people of all races share. It is up to the sentencing judge, within broad limits, to determine how much or how little he or she will say when sentence is imposed. We are not persuaded that the District Court would have imposed a less onerous sentence on Glass if he had been white. As to the testimony of Glass’s attorney, he stated simply that the elements of the crime, including interstate commerce, were discussed with Glass before the plea of guilty was entered. Counsel said nothing that violated any confidence placed in him by Glass or revealed any material communication made to him by Glass. In addition, the claim that Glass’s counsel had not advised him properly, so as to enable him to make a knowing and intelligent plea of guilty, was in substance an attack on counsel’s conduct, and he had a right to defend himself. We also disagree with defendant’s abandoned-property argument. The government had documentary proof that the gun had been manufactured in Massachusetts. It is undisputed that the gun was in Missouri when it was in Glass’s possession. This is a sufficient nexus with interstate commerce. Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977). That the gun may have been, at some time during its history, “abandoned” by some previous owner is not material. The factual basis for the plea was adequately shown, and no manifest injustice justifying the granting of a motion under Fed.R.Crim.P. 32(d) for leave to withdraw the plea of guilty has been established. We have considered Glass’s other arguments and hold that they are without merit. We are indebted to Glass’s appointed counsel for his diligent and determined services in behalf of his client. Affirmed. . The Hon. Clyde S. Cahill, United States District Judge for the Eastern District of Missouri. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

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