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sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. COLLINS v. CALIFORNIA. No. 599, Misc. Decided April 15, 1963. Per Curiam. The motion for leave, to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353. Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their opinions in Douglas v. California, 372 U. S., at 358, 360. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. VILLAGE OF WILLOWBROOK et al. v. OLECH No. 98-1288. Argued January 10, 2000 Decided February 23, 2000 James L. DeAno argued the cause and filed briefs for petitioners. Irving L. Gornstein argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Underwood, and Mark B. Stem. John R. Wimmer argued the cause and filed a brief for respondent. Richard Ruda, James I. Crowley, and Donald B. Ayer filed a brief for the International City/County Management Association et al. as amici curiae urging reversal. Harvey Grossman, Steven R. Shapiro, and Richard J. O’Brien filed a brief for the ACLU as amicus curiae urging affirmance. Per Curiam. Respondent Grace Oleeh and her late husband Thaddeus asked petitioner Village of Willowbrook (Village) to connect their property to the municipal water supply. The Village at first conditioned the connection on the Olechs granting the Village a 33-foot easement. The Olechs objected, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. After a 3-month delay, the Village relented and agreed to provide water service with only a 15-foot easement. Oleeh sued the Village, claiming that the Village’s demand of an additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment. Oleeh asserted that the 33-foot easement demand was “irrational and wholly arbitrary”; that the Village’s demand was actually motivated by ill will resulting from the Olechs’ previous filing of an unrelated, successful lawsuit against the Village; and that the Village acted either with the intent to deprive Oleeh of her rights or in reckless disregard of her rights. App. 10, 12. The District Court dismissed the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable claim under the Equal Protection Clause. Relying on Circuit precedent, the Court of Appeals for the Seventh Circuit reversed, holding that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a “ ‘spiteful effort to “get” him for reasons wholly unrelated to any legitimate state objective.’” 160 F. 3d 386, 387 (1998) (quoting Esmail v. Macrane, 53 F. 3d 176, 180 (CA7 1995)). It determined that Olech’s complaint sufficiently alleged such a claim. 160 F. 3d, at 388. We granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a “class of one” where the plaintiff did not allege membership in a class or group. 527 U. S. 1067 (1999). Our cases have recognized successful equal protection claims brought by a “class of one,” where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). In so doing, we have explained that “‘[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’ ” Sioux City Bridge Co., supra, at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350, 352 (1918)). That reasoning is applicable to this ease. Oleeh’s complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). The complaint also alleged that the Village’s demand was “irrational and wholly arbitrary” and that the Village ultimately connected her property after receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of “subjective ill will” relied on by that court. It is so ordered. We note that the complaint in this case could be read to allege a class of five. In addition to Grace and Thaddeus Olech, their neighbors Rodney and Phyllis Zimmer and Howard Brinkman requested to be connected to the municipal water supply, and the Village initially demanded the 33-foot easement from all of them. The Zimmers and Mr. Brinkman were also involved in the previous, successful lawsuit against the Village, which allegedly created the ill will motivating the excessive easement demand. Whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_stpolicy	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Myron Ray ELY, Appellee, v. Earl BLEVINS, Cora Blevins, Appellants, and R.F. Sturgill, Joe Anderson, Defendants. No. 82-1848. United States Court of Appeals, Fourth Circuit. Argued March 10, 1983. Decided May 3, 1983. Wade W. Massie, Abingdon, Ya. (G.R.C. Stuart, Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief), for appellants. Mary Lynn Tate, Abingdon, Va. (Emmitt F. Yeary, Yeary, Tate, Detrick & Wright, P.C., Abingdon, Va., on brief), for appellee. Before WINTER, Chief Judge, ERVIN, Circuit Judge, and ALDRICH, Senior Circuit Judge. Of the First Circuit, sitting by designation. PER CURIAM: Plaintiff Ely and wife spent a night in July, 1979 at the Empire Motor Lodge, owned by defendants Blevins. After his wife had used the tub, plaintiff showered in the combination shower and bath. Finishing, he turned off the cold water, and immediately sought to turn off the hot. The handle, however, “just spun ... around without meshing.” Apparently the cap screw had loosened, and the splines were worn, and had disengaged. The water became extremely hot and, perhaps because of the temperature, or because he was 69 years old, plaintiff was not agile enough to avoid suffering second degree burns. The case was tried to a jury on two counts; the first for negligence, the second for breach of warranty. While the court charged the jury with respect to each, unfortunately it submitted only a single set of verdict forms, resulting in the jury’s returning a general verdict for the plaintiff. This means that if defendants’ motion for a directed verdict as to either count should have been sustained, there must be a new trial. “[T]o submit two counts for general verdict where the evidence does not justify recovery on both, constitutes error, since it cannot be told that the jurors did not take the wrong route. Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30, 82 S.Ct. 1130, 1136, 8 L.Ed.2d 305 (1962); Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 79, 27 S.Ct. 412, 419, 51 L.Ed. 708 (1907).” Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 662 (1 Cir., 1981). Defendants do not seriously complain with respect to the sufficiency of the evidence to justify a finding of negligence. There were no anti-skid strips or mat in the tub. The evidence warranted a finding that hot water could reach the shower at a temperature approximating 160°, and that, for personal use, this was excessively hot in case it emerged unmixed, as it could produce second degree burns in a matter of seconds. The plumbing fittings were old, and there were no procedures for inspection; defendants trusting to reporting by occupants or housemaids. The jury was warranted in finding that this was not reasonable care under the circumstances. The problem arises with respect to the warranty count. Having explained negligence with respect to Count 1, the court charged the jury, succinctly, as follows. “In order to recover for a breach of the implied warranty of suitability, the plaintiff must prove by a preponderance of the evidence as follows: One, that the fixtures or equipment were defective and unfit for ordinary purposes for which they were to be used, and, two, that as a proximate result the plaintiff was injured.” There was no requirement, in other words, of a showing of unreasonable conduct, or lack of care. Plaintiff would justify this submission by our holding in Schnitzer v. Nixon, 439 F.2d 940 (4 Cir.1971). There a motel guest sat in what proved to be a defective chair, and was injured when it collapsed. The case was tried without jury. The court found defendants were not negligent, and dismissed the complaint. In reversing we said, “Since this is a diversity case, we would follow the Supreme Court of Appeals of Virginia but unfortunately it has not explicitly expressed itself on warranty in the instant factual environment. “Certainly, however, nothing in Virginia’s jurisprudence, statutory or decisional, denies the availability of the implied warranty — devoid of negligence — for a guest’s recovery from his innkeeper for injuries caused by a weak fixture provided for the guest’s use. Such an action lies in Virginia, appellees concede, for breach of implied warranty of merchantability or suitability in the sale of goods, Gleason & Co. v. International Harvester, 197 Va. 255, 88 S.E.2d 904 (1955), and for the wholesomeness of food and drink in its sale, Levy v. Paul, 207 Va. 100, 147 S.E.2d 722 (1966). These doctrines in reason and logic dictate recognition of actionable implied warranty on the part of the innkeeper.” (Emphasis in orig.) 439 F.2d at 941. The Schnitzer court then discussed an English case holding an innkeeper to an implied warranty of fitness, and concluded that two Virginia cases were “[ijdentieal in principle”: Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944), and Crosswhite v. Shelby Operating Corp., 182 Va. 713, 30 S.E.2d 673 (1944). With great respect, we cannot help noting that the Virginia court’s opinions in both of these cases spoke sufficiently in terms of negligence and reasonable care to leave its views on absolute liability not free from doubt. However, our question is not whether this court was correct in its estimation of Virginia warranty law in 1970, but whether there are indicia today that call for a different resolution. We start afield. Schnitzer was shortly followed by the Michigan court in Jones v. Keetch, 388 Mich. 164, 200 N.W.2d 227 (1972). Again a motel guest was injured by a defective chair. The court stated that it was irrelevant whether the plaintiff was to be considered a bailee or a lessee, and, following Schnitzer, held that there was a breach of implied warranty of fitness. It appears, however, that the Virginia court has not followed that route. In Leake v. Meredith, 221 Va. 14, 267 S.E.2d 93 (1980), plaintiff rented what proved to be a defective ladder from the defendant and the question of a lessor’s liability arose. Plaintiff’s suit for breach of warranty was dismissed. The court took the opposite view from Keetch, declining to align itself with those courts that apply the Uniform Commercial Code to leases. It is true that the court did not say, in so many words, that there was no common law implied warranty in addition to statutory warranties under the Code, but certainly its failure to find one would seem an eloquent omission. We do not feel, under these circumstances, that we should find that the Virginia court would make a special rule in favor of an innkeeper’s warranty. We are confirmed in this refusal by the realization that, while an innkeeper is often held to a specially high duty of care, the general rule, nationally, falls short of warranty. See, e.g., Truett v. Morgan, 153 Ga.App. 778, 266 S.E.2d 557 (1980); Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 250 S.E.2d 245 (1979); Bearse v. Fowler, 347 Mass. 179, 196 N.E.2d 910 (1964); Early v. Lowe, 119 W.Va. 690, 195 S.E. 852 (1938). Finally, there is no possible merit in defendants’ claim that plaintiff was contributorily negligent as matter of law. We have reviewed defendants’ other contentions, but find them not to require comment. We trust that plaintiff’s extreme jury argument will not be repeated; it was uncalled for to talk about great national hotel tragedies, and the need to teach motel keepers lessons. Reversed; new trial on Count 1. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_usc2sect	77	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". NEMEC v. UNITED STATES. No. 12810. United States Court of Appeals Ninth Circuit. Sept. 5, 1951. F. E. Nemec, in pro se. Harvey Erickson, U. S. Atty., Frank R. Freeman, Asst. U. S. Atty., Spokane, Wash, for appellee. Before HEALY, Circuit Judge, and FEE and SOLOMON, District Judges. PER CURIAM. Nemec was indicted, tried and convicted by a jury for defrauding numerous Washington investors by the sale of alleged mining claims in California through false and fraudulent representations. He was sentenced to a total of four years on counts involving conspiracy, mail fraud and two offenses under the Securities Act of 1933, § 17, 15 U.S.C.A. § 77q. The conviction was affirmed. 9 Cir., 178 F.2d 656. He made- a motion in the United States District Court for the Eastern District of Washington, which was the Trial Court, to vacate judgment and sentence, which was denied. He again appeals. He contends that the indictment was insufficient. The failure of the indictment to state crimes was raised before trial by a demurrer, which was overruled. The point was not raised upon appeal, but was necessarily passed upon. The judgment on affirmance became final. Furthermore, each count of the indictment has been reexamined and found to state a crime. The final claim is that the Court did not have jurisdiction of certain counts because the evidence did not show that the letter was posted within the District although posted within the State of Washington. The constitutional objection did not lie, therefore, and the matter could have been waived. The point was not urged upon appeal. The second count was thus objected to. Since this count was drawn under the mail fraud statute, the objection is not good, as that statute permits trial in the District where the letter is received. The fourth count can also be construed as one under the mail fraud statute. After judgment, this is sufficient. The Court had jurisdiction of the indictment and of the person of the defendant. The Judge had the power to impose a sentence of five years upon at least one count of the indictment. A sentence of a total of four years was imposed. There is no question, this sentence would have been valid if no counts were specified, even if one count were absolutely void for lack of jurisdiction. In any event, it is a question of the intention of the Trial Judge. In denying the motion to vacate the sentence, Judge Driver held “that this Court had jurisdiction to impose such sentence and that said sentence was not in excess of the maximum authorized by law.” We hold that it is of no consequence what counts the judgment specified, so long as there was conviction on a valid count capable of bearing the sentence imposed. Appellant then claims that it was double jeopardy to permit conviction on two counts upon the same evidence. This point has no substance. The immemorial practice has been to join conspiracy and substantive counts and to sustain convictions of each. The order is affirmed. . 18 U.S.C.A. § 1341. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number. Answer:
songer_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". James P. TAYLOR, Appellant, v. UNITED STATES of America, Appellee. No. 17623. United States Court of Appeals Eighth Circuit. April 16, 1964. James P. Taylor, pro se. No appearance for appellee. Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge. PER CURIAM. The denial of a previous motion by appellant to vacate sentence under 28 U.S.C.A. § 2255 was reversed by us in Taylor v. United States, 8 Cir., 282 F.2d 16, with directions to hold a hearing upon appellant’s claim that he was mentally incompetent during the proceedings leading to his conviction and sentence. A full-scale hearing was engaged in by the District Court, with appellant being present and duly represented by counsel, and with a large amount of evidence being adduced. Upon careful consideration of all of this oral and documentary evidence, the Court found that appellant had been mentally competent to understand the proceedings against him and to effectively assist in his defense; that this competency obtained in all of the proceedings involved; and that his conviction and sentence were accordingly valid. Detailed findings were made by the Court, which are reported in Taylor v. United States, D.C.Minn., 199 F.Supp. 734. Upon application being made to us for leave to appeal in forma pauperis from this determination, after a certification by the District Court that the appeal would be one that was without merit and so not taken in good faith, we undertook to satisfy ourselves whether there was any basis to request us to review the evidence in relation to the Court’s findings, or whether the appeal would in the situation be frivolous. We made appointment of the counsel who had represented appellant on the hearing, and who thus was familiar with the proceedings and the evidence, to make indication for him of any possible appellate substance that could be involved in the situation. A detailed statement was prepared and filed as to the proceedings and the evidence, from which it was manifest that the situation was without basis for a contention that the evidence did not amply support the District Court’s findings. We accordingly refused to permit the appeal to be proceeded with and dismissed it as frivolous. Taylor v. United States, 308 F.2d 776, 777. - Our opinion said (308 F.2d at 778 and 779): “That Taylor was given a full and fair hearing on his claim that he was mentally incompetent during the proceedings leading to his conviction, is unquestionable. .There was, obviously, ample evidence to support the determination of Judge Devitt that Taylor was during those proceedings mentally competent. The issue tried was an issue of fact for the trial court, and cannot be made a question of law for this Court. * * * There would be no justification for permitting Taylor to go further with his frivolous appeal or for requiring court-appointed counsel to waste further time and efforts on his behalf”. Appellant thereafter filed another motion to vacate sentence under 28 U.S.C.A. § 2255, seeking to have the District Court once more engage in a consideration of the question of his mental competency, under the guise of a charge that his appointed counsel had failed to render him effective assistance. He contends that counsel should have raised the question of his mental competency in his conviction and sentencing proceedings through a timely request to the Court for a mental examination and hearing under 18 U.S.C.A. § 4244. But the plenary hearing and determination which appellant was given on his previous motion to vacate, 199 F.Supp. 734, have afforded him all the right and precaution which could have come to him through proceedings under § 4244. As has been indicated, the Court specifically found that appellant was at all times mentally competent to understand the proceedings against him and to effectively assist in his defense. His contention as to the failure of his counsel to have requested an examination under § 4244 would therefore not be entitled to any consideration as a question of due process in respect to his legal representation. He further contends that his counsel should have raised the defense for him that he was insane at the time of the commission of the crime. The situation, however, is not one in which appellant stood trial, but one in which he pleaded guilty. On the determination of competency made in his previous § 2255 proceeding, that plea was one which appellant had the capacity to make. Beyond this, his contention that, on the indications of mental incompetency which existed, his counsel failed to render effective assistance in not requiring him to stand trial on the criminal charge and setting up insanity as a defense, constituted in the circumstances of the situation an attempt to have the Court engage in another consideration of his mental condition upon the same basis and elements as it had previously done. The determination made had duly taken into account the background and history, as well as other material, upon which appellant sought to rest his present motion. The evaluation made as to all these aspects entitled the Court to treat the motion as not presenting any question of substance or merit sufficient to require hearing on the character of the assistance which had been rendered by his counsel, as a claim of want of due process. The appeal from the Court’s denial of appellant’s motion is entitled to be dismissed as frivolous. It may be added that the charge of lack of effective assistance of counsel was also made in appellant’s previous motion, and that our opinion undertook to lay this charge at rest by stating consideredly that a detailed examination of the tremendous record involved “indicates conclusively a lack of substance to this charge”. 282 F.2d at 19. Appeal dismissed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_casetyp1_7-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". THE DETROITER. THE FRANK A. LOWERY. No. 263. Circuit Court of Appeals, Second Circuit. Feb. 10, 1936. Lynch & Hagen, of New York City (Charles W. Hagen and Henry C. Eidenbach, both of New York City, of counsel), for appellant. Macklin, Brown, Lenahan & Speer, of New York City (Richard F. Lenahan, of New York City, of counsel), for appellee The Frank A. Lowery. Brown, Ely & Richards, of Buffalo, N. Y. (David S. Jackson, of Buffalo, N. Y., of counsel), for libelant. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. This is an appeal by the owner of the M. V. Detroiter, from a decree in the admiralty holding it solely liable for damage to a grain cargo, lifted by the canal barge John J. Pershing, from Buffalo, bound for New York in tow of the motor tug Frank A. Lowery, of which the appellee Frank A. Lowery was the owner and claimant. While in the Barge Canal in the neighborhood of Sprakers, N. Y., the Pershing went ashore, stove in her bottom, and flooded the grain; this was the loss complained of. The Lowery’s tow was made up in two sections, each consisting of three barges tandem, made fast close together, each section upon a hawser 300 feet long; the Pershing was the leading barge of the first section, followed by the Hollenbeck and the Craven. The Lowery insists that the Pershing took the strand because of suction from the Detroiter, which was passing too close and too fast, laden and also bound east. The Detroiter’s position is that the Lowery had got her tow too far to the north and out of the channel, and that the Pershing sheered into the bank or ran aground unaffected by the Detroiter’s passing. It is agreed that the Pershing, just at the moment when the Detroiter happened to be passing, did sheer to the left and push her nose into the bank to a distance of 33 feet from the shore just east of station No. 3170 on the canal. The judge decided that she had been within the channel, and that the Detroiter was moving too fast, and for this reason held her alone. The first question is as to the position of the first section of the Lowery tow. Each of five witnesses on the tug or barges was positive that the distance between the vessel he chanced to be on and the shore of the canal was 35 feet; he was carefully, asked whether he meant the shore line and he expressly declared that he did. Lowery thought that he was about that distance offshore when the Detroiter passed the tug; Gregory, who was steering the Hollenbeck by a Gillies wheel, was very definite that this was the distance, when the Detroiter passed his barge; so was Smith on the Craven. In the rear section Coutant on the first barge, and Lee on the second, said that they were 35 feet offshore when the Detroiter passed their barges. The north side of the channel is not marked by buoys, as is the south; the only guides are two red lights on the north shore, said in the briefs to be 2,000 feet apart, between which the accident' happened. The shore line curves gently to the north away from the range of these two lights until at station No. 3170, where the Pershing went ashore, it is 98 feet away. It is of critical importance whether we take the testimony of the Lowery’s witnesses at its face, or whether we correct it, as Lowery and Smith corrected it when recalled upon rebuttal, so as to make the range and not the shore the place of reference for the distance given. This correction the judge accepted and his finding is of course persuasive, since he saw the witnesses. Moreover, the thing happened at night when estimates of distance, proverbially unreliable at any time, are especially illusory. Nevertheless the examination of all five of these witnesses was so expressly directed to the shore line and not to the range that we feel forced to assume that they meant what they said, for the later recantations are surely not convincing. One witness from the Detroiter also put the distance at the same figure, though it must be confessed that from where he was, he could not well have judged the tow’s position. We do not of course mean that we take the exact footage seriously; indeed, it was a suspicious circumstance that all the witnesses swore alike. We shall try to show that the first section must have been about 80 feet from shore, and while that does indeed considerable violence to the testimony, it does less than to make the distance 130 feet, which we must say if the range be taken as the line of reference. It must be remembered in any case that it was substantially impossible for the bargees, whatever may be said as to Lowery, to estimate on which side of an unmarked channel line the flotilla was moving. The Pershing drew 10 feet; the tug 9%; the two other barges of the first section probably the same, though that does not appear in the testimony. We have depth contours for the canal at stations No. 3175 and No. 3170, 500 feet ap&rt. At the first station a depth of 10 feet is found at about 35 feet from shore and of 11 feet at about 40; at the second, 10 feet is found at 58 feet from shore and 11 feet at 80. Thus at station No. 3170 there is apparently a shoal which extends out some 40 feet into what would otherwise be a more or less uniform prism of the canal. If the Pershing was within 60 feet of the shore, she was therefore sure sooner or later to run aground head on; if she was within 80 feet, she would have less than twelve inches underfoot and according to several uncoutradicted witnesses she would then be liable to “dive,” that is, to take unaccountable sheers. Everybody agrees that she did sheer and that means some lateral movement. How much she turned no one can say; because though she sank at right angles to the channel, there was a current which might have moved her stern slowly while her nose alone was fast. We may, however, be certain that she did not go ashore head on, and this meant that she was more than 60 feet offshore. We have assumed that she was 80 feet off only because that at once accounts for all the facts and least wrenches the testimony; it puts her right side not f^r from the channel line, but her bottom over the shoal at station No. 3170. We can readily understand how she got into such a position; the tug had gone to the left to give the Detroiter a wider berth, and Gregory, at the wheel of the Hollenbeck, said that he moved over still farther; the hawser had gone slack and the section, having very little headway, was out of control for the moment. At a distance of 35 feet from shore there was usually enough water. The Detroiter got consent to pass the tow shortly after passing a hydraulic dredge at about station No. 3205; she began to lap the rear section at station No. 3195. It is uncertain whether she was opposite the Craven or the Pershing, when the Pershing sheered; but whichever it was, her average speed had not been too great. If she was opposite the Craven, she had gone from station No. 3195 to a point 300 feet west of station No. 3170 or 2,200 feet, while the Craven had gone from a point 600 feet east of station No. 3195 to a point 300 feet west of station No. ' 3170, or 1,600 feet. As the tow’s speed was about a mile, her average speed had been a little less than 1.40 miles. If the Detroiter was opposite the Pershing, she had gone from station No. 3195 to station No. 3170, or 2,500 feet", while the tow had gone from a point 500 feet west of station No. 3195, to station No. 3170, or 2,000 feet. Her average speed had been about 1.25 miles. But as the judge very wisely observed this tells us nothing of her speed when passing the first section, and Anderson, the mate in command of the Detroiter at the time, testified before the inspectors that he passed the tow at two and a half to three miles an hour, though he attempted to recant at the trial. We think his first estimate was probably correct when he got opposite the first section, though not before. There was certainly something in the navigation of the Detroiter at that point which frightened that section just before the accident. One bargee swore that he shouted a warning; another heard the shout; and more important than this, the tug blew an alarm to the Detroiter! This we think must have been while she was passing the first section;' so Lowery said, and although two of the Detroiter’s crew swore that it was as she was passing the tug and after the Pershing had already gone ashore, that is most unlikely. In the first place, the danger was then past, for the damage was.done; and, if it be argued that the Lowery might nevertheless have wished to tell the Detroiter of the damage, the answer is that Anderson said that he had no intimation of anything untoward till he reached New York. We conclude that the alarm was given in an effort to reduce the speed of the passing boat; and we agree with the judge that when she came about abreast of the Craven (he put it a little earlier), she started ahead, thinking she was clear. The distance between the two vessels at passing is in dispute, like nearly everything else in the case. There seems to be no doubt that the Detroiter passed the ‘rear section closer aboard than she did the first; she said that she kept within 15 or 18 feet of the marking buoys on the south side of the channel, and perhaps she did. If so, her left side was only 60 feet from the south line and there were 140 feet between her and the north line. Assuming that the Pershing was 80 feet offshore, as she was 20 feet abeam, the Detroiter gave her a berth of one hundred and forty, which might have been enough in ordinary circumstances. That is less than the berth she claims she gave, but a good' deal more than the tug allows. So much assumed, the most natural explanation of the accident is what the judge found, with the single exception of the position of the tow. With him we believe that the Detroiter, seeing herself with so ample a berth, put on speed supposing she could do so safely. In so doing she drew the water away from the ' Craven, which was in effect the stern of a single vessel 300 feet long. This single vessel being in shallow water, the effect of the suction was much exaggerated upon it; though the water was drawn down perhaps not more than 2 or 3 inches, it pressed strongly against the left side of the Craven and drew her in, pivoting the whole section on the Hollenbeck and making the Pershing sheer to the left and run aground about 35 feet from shore. We find both vessels at fault for this result: The Detroiter because although she was so far off, she hit up her speed without considering that the position of the tow made her especially vulnerable to suction; the tug, for letting the tow get out of the channel and into shallow water and thus become unduly sensitive to suction. The-whole thing was due to the shoal which extends out into the canal at station No. 3170; but both masters are charged with notice of such shoals, and while the Lowery took her chances in going in so far, the Detroiter ought to have considered that the Lowery was taking those chances, and ought not to have navigated as though the tow were in the channel, certain of enough water underfoot. Decree modified to hold each claimant at fault and liable for one-half damages. 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	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. KFKB BROADCASTING ASS'N, Inc., v. FEDERAL RADIO COMMISSION. No. 5240. Court of Appeals of District of Columbia. Argued Jan. 6, 1931. Decided Feb. 2, 1931. Geo. E. Strong, of Washington, D. C., for appellant. Thad H. Brown, Arthur W. Seharfeld, and D. M. Patrick, all of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. ROBB, Associate Justice. Appeal from a decision, of the Federal. Radio Commission denying appellant’s application for the renewal of its station license. The station is located at Milford, Kan., is operating on a frequency of 1,050 kilocycles with 5,000 watts power, and is known by the call letters.KFKB. The station was first licensed by the Secretary of Commerce on September 20, 1923, in the name of the Brinkley-Jones Hospital Association, and intermittently operated until June 3,1925. On October 23, 1926, it was relicensed to Dr. J. R. Brinkley with the same call letters and continued to be so licensed until November 26, 1929, when an assignment was made to appellant corporation. On March 20, 1930, appellant filed its application for renewal of license (Radio Act of 1927, c. 169, 44 Stat. 1162, U. S. C. Supp. 3, tit. 47, § 81, et seq. [47 USCA § 81 et seq.]). The commission, failing to find that public interest, convenience, or necessity would be served thereby, accorded appellant opportunity to be heard. Hearings were had on May 21, 22, and 23,1930, at which appellant appeared by counsel and introduced evidence on the question whether the granting of the application would be in the public interest, convenience, or necessity. Evidence also was introduced in behalf of the commission. Upon consideration of the evidence and arguments, the commission found that public interest, convenience, or necessity would not be served by granting the application and, therefore, ordered that it be denied, effective June 13, 1930. A stay order was allowed by this court, and appellant has since been operating thereunder. The evidence tends to show that Dr. J. R. Brinkley established Station KFKB, the Brinkley Hospital, and the Brinkley Pharmaceutical Association, and that these institutions are operated in a common interest. White the record shows that only 3 of the 1,000 shares of the capital stock of appellant are in Dr. Brinkley’s name and that his wife owns 381 shares, it is quite apparent that the doctor actually dictates and controls the policy of the station. The Brinkley Hospital, located at Milford, is advertised over Station KFKB. For this advertising the hospital pays the station from $5,000 to $7,000 per month. The Brinkley Pharmaceutical Association, formed by Dr. Brinkley, is composed of druggists who dispense to the public medical preparations prepared according to formulas of Dr. Brinkley and known to the public only by numerical designations. Members of the association pay a fee upon each sale of certain of those preparations. The amounts thus received are paid the station, presumably for advertising the preparations. It appears that the income of the station for the period February, March, and April, 1930, was as follows: Brinkley Pharmaceutical Association ...................... $27,856.40 Brinkley Hospital............. 6,500.00 All other sources.............. 3,544.93 Total..............!.....$37,901.33 Dr. Brinkley personally broadcasts during three one-half hour periods daily over the station, the broadcast being referred to as the “medical question box,” and is devoted to diagnosing and prescribing treatment of eases from symptoms given in letters addressed either to Dr. Brinkley or to the station. Patients are not known to the doctor except by means of their letters, each letter containing a code signature, which is used in making answer through the broadcasting station. The doctor usually advises that the writer of the letter is suffering from a certain ailment, and recommends the procurement from one of the members of the Brinkley Pharmaceutical Association, of one or more of Dr. Brinkley’s prescriptions, designated by numbers. In Dr. Brinkley’s broadcast for April 1, 1930, presumably representative of all, he prescribed for forty-four different patients and in all, save ten, he advised the procurement of from one to four of his own prescriptions. We reproduce two as typical: “Here’s one from Tillie. She says she had an operation, had some trouble 10 years ago. I think the operation was unnecessary) and it isn’t very good sense to have an ovary removed with the expectation of motherhood resulting therefrom. My advice to you is to use Women’s Tonic No. 50, 67, and 61. This combination will do for you what you desire if any combination will, after three months persistent use. “Sunflower State, from Dresden Kans. Probably he has gall stones. No, I don’t moan that, I mean kidney stones. My advice to you is to put him on Prescription No. 80 and 50 for men, also 64. I think that he will be a whole lot better. Also drink a lot of water.” In its “Facts and Grounds for Decision,” the commission held “that the practice of a physician’s prescribing treatment for a patient whom he has never seen, and bases his diagnosis upon what symptoms may be recited by the patient in a letter addressed to him, is inimical to the public health and safety, and for that reason is not in the publie interest”; that “the testimony in this case shows conclusively that the operation of Station KFKB is conducted only in the personal interest of Dr. John R. Brinkley. White it is to be expected that a licensee of a radio broadcasting station will receive some remuneration for serving the public with radio programs, at the same time the interest of the listening public is paramount, and may not be subordinated to the interests of the station licensee.” This being an application for the renewal of a license, the burden is upon the ap-plieant to establish that such renewal would be in the public interest, convenience, or necessity (Technical Radio Lab. v. Fed. Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 114, 66 A. L. R. 1355; Campbell v. Galeno Chem. Co., 281 U. S. 599, 609, 50 S. Ct. 412, 74 L. Ed. 1063), and the court will sustain the findings of fact of the commission unless “manifestly against the evidence.” Ansley v. Fed. Radio Comm., 60 App. D. C. 19, 46 F.(2d) 600. We have held'that the business of broadcasting, being a species of interstate commerce, is subject to the reasonable, regulation of Congress. Technical Radio Lab. v. Fed. Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 66 A. L. R. 1355; City of New York v. Fed. Radio Comm., 59 App. D. C. 129, 36 F.(2d) 115; Chicago Federation of Labor v. Fed. Radio Comm., 59 App. D. C. 333, 41 F. (2d) 422. It is apparent, we think, that the business is impressed with a public interest and that, because the number of available broadcasting frequencies is limited, the commission is necessarily called upon to consider the character and quality of the service to be rendered. In considering an application for a renewal of the license, an important consideration is the past conduct of the applicant, for “by their fruits ye shall know them.” Matt. VII :20. Especially is this true in a case like the present, where the evidence clearly justifies the conclusion that the future conduct of the station will not differ from the past. In its Second Annual Eeport (1928), p. 169, the commission cautioned broadcasters “who consume much of the valuable time allotted to them under their licenses in matters of a distinctly private nature which are not only uninteresting, but also distasteful to the listening public.” When Congress provided that the question whether a license should be issued or renewed should be dependent upon a finding of public interest, convenience, or necessity, it very evidently had in mind that broadcasting should not be a mere adjunct of a particular business but should be of a public character. Obviously, there is no room in the broadcast band fo.r every business or sehool of thought. In the present ease, while the evidence shows that much of appellant’s programs is entertaining and unobjectionable in character, the finding of the commission that the station “is conducted only in the personal interest of Dr. John E. Brinkley” is not “manifestly against the evidence.” We are further of the view that there is substantial evidence in- support of the finding of the Commission that the “medical question boy” as conducted by Dr. Brinkley “is inimical to the public health and safety, and for that reason _ is not in the public interest.” Appellant contends that the attitude of , the commission amounts to a censorship of the station contrary to the provisions of section 29 of the Eadio Act of 1927 (47 USCA § 109). This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant’s-broadcasting matter to scrutiny prior to its release.. In considering the question whether the publie interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship. As already indicated, Congress has imposed upon the commission the administrative function of determining whether or not a station license should be renewed, and the commission in the present ease has in the exercise of judgment and discretion ruled against the applicant. We are asked upon the record and evidence before the commission to substitute our judgment and discretion for that of the commission. While section 16 of the Radio Act of 1927 (44 Stat. 1162, 1169, U. S. C., Supp. 3, tit. 47, § 96) authorized an appeal to this court, we do not think -it was the intent of Congress that we should disturb the action of the commission in a ease like the present. Support is found for this view in the Act of July 1, 1930 (46 Stat. 844 [47 USCA § 96]), amending section 16 of the 1927 Act. The amendment specifically provides “that the review by the court shall be limited to questions of law and that findings of fact by the commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the commission are arbitrary or capricious.” As to the interpretation that should be placed upon such provision, see Ma-King v. Blair, 271 U. S. 479, 483, 46 S. Ct. 544, 70 L. Ed. 1046. We are therefore constrained, upon a careful review of the record, to affirm the decision. Affirmed. 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_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. GATLIFF COAL CO. v. COX. No. 10035. Circuit Court of Appeals, Sixth Circuit. Nov. 19, 1945. See also 142 F.2d 876. Tye & Siler, H. C. Gillis, and Robert L. Smith, all of Williamsburg, Ky., for appellant. R. L. Pope, of Knoxville, Tenn., and C. B. Upton, of Williamsburg, Ky., for appel-lee. Before HICKS, SIMONS and ALLEN, Circuit Judges. HICKS, Circuit Judge. Appellee, Maynard Cox, recovered a judgment against appellant, Gatliff Coal Company, in the District Court for the Eastern District of Kentucky in the sum of $10,045.00 and costs, and for an additional sum of $1000 for attorneys’ fees to be paid to the attorneys of record of appellee for their services in his behalf. The case was tried by the court without the intervention of a jury. The court made findings of fact and conclusions of law which were unexcepted to by appellant. The court also filed an opinion, printed in the margin, which sets forth the issues developed by the pleadings and the conclu- sions of the court upon its findings. We are of the opinion that upon the grounds and for the reasons set forth in the findings and the opinion, the judgment appealed from should be and the same is therefore affirmed, OPINION OF DISTRICT COURT— Filed April 6, 1945. These actions involve common questions of law and similar issues of fact. By agreement of the parties, for the purpose of trial, they were consolidated and tried by the Court without the intervention of a jury. During the period here involved the defendant Gatliff Coal Company, a Delaware Corporation, was engaged in operating several coal mines in Whitley County, Kentucky, and in marketing a substantial amount of the coal in interstate commerce. The plaintiffs were employed by defendant in operating its power house which furnished the power for the operation of all the mines, plaintiff Maynard Cox being an engineer and Ora L. Jones a fireman. Cox’s employment covered the period from April 1, 1941, to and including March 31, 1943, and Jones worked from April 1, 1941, to and including June 30, 1942. Prior to April 1941, the defendant’s employees were unorganized and defendant’s mines were operated under a non-union open shop policy. During early April 1941 the employees were organized and plaintiffs, along with other employees, became members of the minors’ union known as District 19, United Mine Workers of America, which will be hereinafter referred to as the Union. At that time negotiations were in progress in Washington, D. C., between representatives of the United Mine Workers of America and the Southern Appalachian Coal Operators’ Association (which will be hereinafter referred to as the Operators’ Association), with a view to reaching a collective bargaining agreement to regulate and control rates of pay, hours of work and conditions of employment in the bituminous coal industry in the territory embracing that part of Kentucky in which defendant’s mines are located and other adjoining states. The defendant was not, at that time, a member of the Operators’ Association and was not represented at the wage conference then in progress. Upon becoming affiliated with the Union, defendant’s employees joined with the other union miners throughout the territory in the strike which had prevailed since the expiration of the previous union contract on April 1, 1941. This resulted in closing down defendant’s mining operations. The participants in the wage conference at Washington, recognizing tiie fact that negotiations as to the new collective agreement would bo prolonged, and desiring to promote the National defense program by ending the pending strike, on April 30, 1941, entered into a temporary agreement to be effective during the negotiations and until final conclusion of a new agreement. By this arrangement, the terms of the old contract were, for the time being, to continue in effect, subject to certain specified wage increases. This temporary agreement, known and referred to as the “Washington Agreement,” contained a provision extending its terms to any independent operators in the field who might wish to avail themselves of it. As a condition of resuming work, the defendant’s employees, through their Union, demanded that defendant recognize the Union as their bargaining agency, accept the terms and conditions of the temporary Washington Agreement and accept the collective bargaining agreement when it should be finally settled and entered into by the Operators’ Association and the Union. Having indicated willingness to conform to these demands, defendant’s mines resumed operation and on May 21, 1941, defendant’s principal officials met with representatives of the local Union at the office of the defendant in Williamsburg, Kentucky. They reached a temporary agreement in regard to their differences and evidenced it by the following writings which were i>repared by and at the office of the defendant’s attorney, to-wit: “This Agreement made and entered into this the 21st day of May, 1941, by and between the Gatliff Coal Company, of Williamsburg, Kentucky, party of the first part, and District No. 19, United Mine Workers of America, party of the second part, Witnesseth: “It is agreed that this agreement is to be effective as of May 1, 1941. “It is agreed that this contract is for the general use and benefit of the contracting parties, exclusively, as heretofore defined and set forth in this agreement. “The undersigned coal company agrees to accept the agreement by and between District 19, United Mine Workers of America, and the Southern Appalachian Coal Operators’ Association, with all its wages, hours of labor and provisions. “The above company, party of the first part, agrees to put into force and effect the wages, hours of labor and working conditions that have been agreed upon in Washington, D. C., April 30, 1941. “This temporary agreement is effective as of this date and shall apply until a formal ratification of the final agreement extending through March 31, 1943, is completed. “Supx>lemontal Agreement to the Gatliff Mine, Gatliff Coal Company, Gatliff, Kentucky to Agreement of Even Date. “It is agreed that the rate paid for loading coal on conveyors on March 31, 1941, in the Rose Creek Mine and No. 3 Mine shall carry the increases of the Washington Agreement of April 30, 1941, and any other increases that may be agreed upon as affecting the coal operators in the Southern Appalachian area. “It is further agreed that when machinery is moved from one location to a new place the crew shall he given the chance to move the equipment to the now location, providing they are eligible for work. When the crew is employed to move conveyor equipment to a new location they shall be paid at the rate of $6.60 per shift. “It is further agreed that the power house is to be discontinued as soon as TVA power or a contract with some utilities company can be arrived at. The employees doing the work in the said power house shall continue as in the past and receive the one dollar per day increase and any other increase that may be granted the miners of the Southern Appalachian Coal Operators’ Association. “It is mutually ' agreed by the parties hereto that the custom heretofore and now in effect with reference to pulling man trip shall be continued under this agreement. “The United Mine Workers hereby agreed that any violation of the National Labor Relations Act that may have occurred before the signing of this contract will not be initiated or prosecuted by the United Mine Workers of America. . “In Witness Whereof, each of .the parties pursuant hereto have caused this agreement to be signed by the properly designated representatives on this 21st day of May, 1941.” On July 5, 1941, the conferees representing the Operators Association and the Union concluded a basic agreement known as “Southern Wage Agreement,” which was made effective as of April 1, 1941, and to continue in effect until March 31, 1943. This agreement established certain basic conditions of employment, rates of pay and hours of work. It made provisions for “District Agreements” dealing with local conditions in each district, not inconsistent with the basic rates of pay, hours of work, conditions of employment and the specific rights and obligations of operators and mine workers set forth in the basic contract. It also contained a “Protective Wage Clause” providing, in substance, that all parties to the basic agreement should receive and have the benefit of any more favorable terms covering wages or working conditions which might be embodied in any District Agreement. On November 5, 1941, a so-called “District Agreement” applying to District 19 was finally concluded and executed. It, like the basic contract, was made effective from April 1, 1941, to March 31, 1943. This District Agreement provided that engineers (the classification to which it is admitted the plaintiff Maynard Cox belonged) should be paid wages at the hourly rate of $1.023 for regular time and firemen (the classification to which it is admitted the plaintiff Ora L. Jones belonged) should be paid an hourly rate of $.857 for regular time. A day of eight hours or forty hours per week was fixed as regular time. For time worked in excess thereof, the plaintiffs were entitled to wages at one and one-half the regular time rate. This agreement reaffirmed the general terms of the basic contract and also contains the following provisions: “It is understood and agreed by and between the parties hereto that if the United Mine Workers of America negotiate a wage agreement covering variations in working conditions with any other person, company, association or district on a basis 'more favorable to such other person, company, association or district than the basis of this present wage agreement, then in that event the basis of this present wage agreement shall be modified so that the Southern Appalachian Coal Operators’ Association and its members shall receive all the benefits of such more favorable wage agreement unless such agreement has been approved by the Southern Appalachian Coal Operators’ Association (pages 1-2). * * * sí; * * * “No deviation from the rates of pay set out in this contract shall be permitted” (page 35). Notwithstanding the provision of the temporary agreement between the defendant and the representatives of its employees of May 21st previous, that “the undersigned coal company agrees to accept the agreement by and between District 19, United Mine Workers of America and the Southern Appalachian Coal Operators’ Association, with all its wages, hours of labor and provisions,” the defendant refused to sign the District Agreement and so notified William Turnblazer, the president of District 19. Thereupon he sent Paul K. Reed, an international representative of the Union, to confer with defendant. The result of this conference was that the defendant signed the District Agreement but did so only after Paul IC Reed, purporting to act on behalf of the Union, orally agreed that the temporary, contract of May 21, 1941, should continue in effect during the entire period covered by the District Agreement, that is, until March 31, 1943. This verbal understanding was, according to the testimony of Mr. Reed, concurred in and approved by William Turnblazer, president of District 19. (Mr. Turnblazer never testified in the case; he died before the time of the trial.) It was also verbally approved by L. O. Gunter, president of the Operators’ Association. There was no writing evidencing the understanding or agreement to extend the temporary agreement throughout the entire period to March 31, 1943. Mr. Gunter explains his refusal to put iiis consent to the agreement in writing thus: “ * * * I was asked by Mr. Turn-blazer if I would put that agreement in writing and I told him no, that I didn’t think it was necessary to do it, as I didn’t want to publish the terms under which the Gatliff Goal Company and the United Mine Workers had made a variation in this contract, as it might establish a precedent in the district which would be troublesome, and that therefore I would not do that but that we would make a gentlemen’s agreement to that effect, that he would have to accept my word and my promise that there would be no difficulty on the part of the Association.” It appears from the testimony however that the defendant paid Clarence Lawson, an employee engaged as engineer in its power plant at the wage rate provided by the District Agreement and also paid other employees who, from time to time, were substituted for plaintiffs, in their absence, at the rate fixed by the District Agreement, but did not at any time pay the plaintiffs the wage rate so provided. Soon after the ratification of the District Agreement and at frequent intervals thereafter, plaintiffs in person and through their representatives on the local mine committee, protested the failure of defendant to pay them the full amount provided by the District Agreement and at all times insisted that they were entitled to the wage therein provided although they accepted semimonthly payments at a less rate. According to a transcript from defendant’s books filed in the record which, pursuant to an order made at pre-trial conference, is accepted by the parties as correct, at the hourly rate for regular time and overtime as provided in the District Agreement, the plaintiff Maynard Oox earned a total of $4285.35 for regular time and a total of $5862.17 for overtime, for which defendant paid him only $1597.43 on account of regular time and $2181.63 on account of overtime. According to the same records, at the hourly rate for regular time and overtime, as provided in the District Agreement, the plaintiff Ora L. Jones earned a total of $2245.34 for regular time and a total of $2389.39 for overtime, for which defendant paid him only $1048.89 on account of regular time and $1103.33 on account of overtime. The payments so made to the plaintiffs, while substantially below the rates provided by the District Agreement, were more than the minimum rates required by Section 6 of the Fair Labor Standards Act [29 U.S.C.A. § 20GJ for regular time and included one and one-half thereof for overtime. The plaintiffs seek judgment for the balances due them, respectively, under the terms of the District Agreement and, under Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), they seek “liquidated damages” and reasonable attorneys’ fees. The defendant, denying any liability to plaintiffs, relies upon the oral agreement made with Union representative, Paul K. Reed, to the effect that the writings of March 21, 1941, should be effective until March 31, 1943. It contends that as these plaintiffs were “employees doing work in the said power house” they were limited to the wages provided in the agreement of May 21st, the full amount of which has been paid them. Defendant also pleads that, by accepting those wage rates during the entire periods of their respective employments, the plaintiffs are now estop-ped to claim wages under the District Agreement. Plaintiffs insist that, since defendant makes no allegations of fraud or mutual mistake, under the familiar rule commonly known as the “parol evidence rule,” all parol testimony herein introduced and relied upon by defendant as to negotiations tending to substitute a prior or contemporaneous parol agreement at variance with the written agreement which was admittedly executed by the parties, is incompetent and should he disregarded. They also challenge the authority of the officers of the Union, no express authority being shown, to abrogate, waive or modify the terms of the District Agreement in such a way as to discriminate against them. Piercy v. Louisville & N. R. Co., 198 Ky. 477, 248 S.W. 1042, 33 A.L.R. 322; Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226. While fully agreeing with these contentions it seems preferable to rest the decision of this case upon broader and less tenuous grounds. During the period involved in this litigation, the rights and duties of the parties as employer and employees were subject to the provisions of the - “National Labor Relations Act” (29 U.S. C.A. §§ 151-166) and the “Fair Labor Standards Act of 1938” (29 U.S.C.A. §§ 201-219), and in so far as these Acts of Congress are pertinent to the issues here involved they are controlling. The so-called “District Agreement” was a valid collective bargaining agreement within the meaning of the National Labor Relations Act and is entitled to the protection which it affords. In utilizing collective bargaining agreements -to implement a National labor policy designed to remove certain recognized sources of industrial strife by encouraging friendly adjustment of industrial disputes as to wages, hours of work and other conditions of employment, upon a plane of equality of bargaining power between employers and employees, the National Labor Relations Act, in the public interest, has given such collective bargaining agreements a more secure and stable position in our National economy than that of ordinary common law contracts which may be altered at pleasure by rendering ineffectual and unavailable any collateral agreements between individual members of the collective bargaining group designed to obtain a diminution of the obligations of a particular employer or abridgment of the benefits accruing to particular employees under the collective agreement, regardless of the circumstances that may be relied upon to justify them or the terms thereof. To hold otherwise “ * * * would reduce the National Labor Relations Act to a mere futility and leave collective agreements no stronger than the weakest members of the union.” J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762. Statutes requiring collective bargaining would have little substance if what was made collectively could be promptly unmade individually. Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 346, 64 S.Ct. 582, 88 L.Ed. 788. The Act also contemplates that a collective bargaining agreement be in writing. In H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 525, 61 S.Ct. 320, 324, 85 L.Ed. 309, after commenting upon the history of the collective bargaining process and pointing out that its object “has long been- an agreement between employer and employees * * * evidenced by a signed contract or statement in writing,” the Supreme Court said: “We think that Congress, in thus incorporating in the new legislation the collective bargaining requirement of the earlier statutes included as a part of it, the signed agreement long recognized under the earlier acts as the final step in the bargaining process.” It thus appears that the National Labor Relations Act clearly precludes defendant’s reliance upon the prior or contemporaneous oral agreement upon which its defense to these actions is based. I am of the opinion that the wages, hours of work and conditions of employment of both plaintiffs, during the period of their respective employments by defendant here involved, were governed by the written collective bargaining agreements, which defendant signed, and that by accepting semi-monthly payments of less amount than the wages provided by the written collective agreement, they are not estopped to claim the balance due them thereunder, but are entitled to judgment for such balance. Under the provisions of Section 16(b) of the Fair Labor Standards Act, 29 U.S.O.A. § 216(b), each of the plaintiffs is entitled to judgment against defendant for “an additional equal amount” of his “unpaid overtime compensation” as. “liquidated damages,” Bumpus v. Continental Baking Co., 6 Cir., 124 F.2d 549, 553, 140 A.L.R. 1258, and their attorneys are entitled to allowance of “a reasonable attorney’s fee,” to be paid by defendant, for services rendered in respect to the issues arising out of and the results attributable to the Fair Labor Standards Act. Detailed findings of fact and conclusions of law are attached hereto and judgment will be entered accordingly. H. Church Ford, Judge. 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_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 "construction". Your task is to determine what subcategory of business best describes this litigant. MANGANARO BROTHERS, INC., Plaintiff, Appellee, v. GEVYN CONSTRUCTION CORP., Defendant, Appellant. No. 79-1282. United States Court of Appeals, First Circuit. Argued Oct. 1, 1979. Decided Dec. 5, 1979. Cornelius J. Moynihan, Jr., Boston, Mass., with whom Peabody, Brown, Rowley & Sto-rey, Boston, Mass., Leslie A. Hynes and Hynes, Diamond & Reidy, New York City, were on brief, for defendant, appellant. Peter J. Gagne, Boston, Mass., with whom Sally A. Corwin, Joseph M. Corwin and Corwin & Corwin, Boston, Mass., were on brief for plaintiff, appellee. Before COFFIN, Chief Judge, ALD-RICH, Circuit Judge, BONSAL, District Judge. Of the Southern District of New York, sitting by designation. ALDRICH, Senior Circuit Judge. In 1967, Middlesex County, Commonwealth of Massachusetts, contracted with defendant Gevyn Construction Corporation, as general contractor, to build a courthouse. Defendant entered into a number of subcontracts, including one with plaintiff Man-ganaro Brothers, Inc. When plaintiff’s work was partially completed, County terminated the prime contract, and on learning this, plaintiff ceased work'. Plaintiff sued Gevyn on two grounds, for payment due on work completed, and for anticipated profits on the balance.. The first aspect has been disposed of. No purpose would be served by detailing the history of the second except to say that the amount of plaintiff’s anticipated future profit has been determined at a bench trial and defendant held liable therefor. Defendant’s appeal revolves around ¶ 35 of plaintiff’s contract. 35. In the event that the Owner terminates or cancels the Principal Contract for any cause whatsoever at any time after the date hereof, this Subcontract shall likewise be deemed cancelled and terminated. In such event [the Contractor’s liability shall be limited to payment for work done]. Plaintiff says that this provision is not applicable if the cause of County’s termination was Gevyn’s default on the principal contract. To construe “any cause whatsoever” as excluding defendant’s fault would, however, read a significant limitation into language unrestricted on its face, as well as introduce a possibly difficult issue destroying the simplification the parties seemingly intended. In any event, although requested to do so, the court failed to find Gevyn responsible for County’s termination, a failure understandable in the light of the paucity of evidence. The court’s finding for plaintiff was based on its finding that Gev-yn had committed a substantial breach of the subcontract, that the breach had not been waived, and that the breach “rendered irrelevant the provisions of Section 35.” We take this last to mean what plaintiff asserts it to mean, that Gevyn lost the right to rely on section 35. Defendant’s breach was that it did not keep up the proportionate payments due to plaintiff out of monies received from County. This breach was not waived for the excellent reason that plaintiff was not aware of it until some months after the termination. Our first question, therefore, is the correctness of the court’s ruling that the breach, subsequently discovered, prevented defendant’s reliance on a clause limiting damage. The court made no express finding, but we may assume from the evidence that the breach was intentional. At the same time, it was totally unconnected, causally or otherwise, with County’s termination of the principal contract and the termination of plaintiff’s subcontract. We do not agree with the district court. To begin with, defendant’s breach, even though a substantial one, of course did not of itself terminate the contract, but merely gave plaintiff a right to terminate it. Before plaintiff had exercised that right, the termination of the principal contract caused the contract to terminate by reason of ¶ 35, which was then in full force. It is difficult to say that ¶ 35 was at once the operative provision and irrelevant. But even had this not been the case, and plaintiff had been the one to terminate by asserting defendant’s breach, the court could not read ¶ 35 out of the agreement. While plaintiff might have ignored the contract and sued simply in quantum meruit, it did not, but instead sought future profits on agreed-to but unperformed work. The black letter rule is stated in United States v. Zara Contracting Co., 2 Cir., 1944, 146 F.2d 606, at 610, “[T]he definite commitment which the plaintiffs have made in Article 5 is one they must stand by so long as they must rely upon their contract . .” Since plaintiff is relying on the contract to recover, the court’s decision to read ¶ 35 out of the contract could not be made as a ruling of law, but was a result justifiable; if at all, only by interpretation of the contract’s own terms. This may be tested by supposing for the moment that ¶ 35 had contained a further sentence, “This provision will apply even if the Contractor was in default on this subcontract.” Obviously, in that case, plaintiff could not claim that defendant’s breach prevented its reliance on the provision. So, here, such a claim can be made only by interpreting ¶ 35 to contain the opposite of what we have just supposed, viz., an exception to the effect that ¶ 35 will not apply in case of Gevyn’s default. Plaintiff is back where it started, seeking to read an exception into language absolute on its face. It would be peculiarly inappropriate to do this when, under ordinary damage principles, a party cannot, by claiming a breach, recover more than he would have obtained had no breach occurred. In view of the fact that because of the termination of the principal contract, for which defendant was not chargeable, plaintiff never would have been able to realize future profits, there is no reason why it should acquire a windfall from defendant by pointing to an entirely collateral breach on defendant’s part. Supervening impossibility of performance not occasioned by the defendant puts an end to recovery, regardless of defendant’s prior breach. Restatement of the Law of Contracts (1932) § 457, esp. Comment d; Model Vending, Inc. v. Stanisci, 1962, 74 N.J.Super. 12, 180 A.2d 393. Reversed. . Interestingly enough, plaintiff observes in its brief, in another connection, “A subcontractor is not in a position to prove responsibility for breaches between the general contractor and the owner. The documents and information necessary to that determination are beyond the subcontractor’s reach.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant? A. residential B. commercial or industrial C. other D. unclear Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations KERR-McGEE CORP. v. NAVAJO TRIBE OF INDIANS et al. No. 84-68. Argued February 25, 1985 Decided April 16, 1985 Burger, C. J., delivered the opinion of the Court, in which all Members joined, except Powell, J., who took no part in the consideration or decision of the case. Alvin H. Shrago argued the cause and filed briefs for petitioner. Elizabeth Bernstein argued the cause and filed a brief for respondents. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Assistant Attorney General Habicht, and John A. Bryson. Briefs of amici curiae urging reversal were filed for Arizona Public Service Co. et al. by Robert B. Hoffman; for Peabody Coal Co. by Jeffrey B. Smith; for Phillips Petroleum Co. et al. by Alan L. Sullivan and Clark R. Nielsen; for the Salt River Project Agricultural Improvement and Power District by Frederick J. Martone; and for Texaco, Inc., by Bruce Douglas Black. Briefs of amici curiae urging affirmance were filed for the Association on American Indian Affairs, Inc., et al. by Arthur Lazarus, Jr., and W. Richard West, Jr.; and for the Shoshone Indian Tribe Reservation, Wyoming, et al. by Reid Peyton Chambers, Loftus E. Becker, Jr., Thomas W. Fred-ericks, and Peter C. Chestnut. F. Browning Pipestem filed a brief for the Sac and Fox Tribe of Indians of Oklahoma as amicus curiae. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to decide whether the Navajo Tribe of Indians may tax business activities conducted on its land without first obtaining the approval of the Secretary of the Interior. I In 1978, the Navajo Tribal Council, the governing body of the Navajo Tribe of Indians, enacted two ordinances imposing taxes known as the Possessory Interest Tax and the Business Activity Tax. The Possessory Interest Tax is measured by the value of leasehold interests in tribal lands; the tax rate is 3% of the value of those interests. The Business Activity Tax is assessed on receipts from the sale of property produced or extracted within the Navajo Nation, and from the sale of services within the nation; a tax rate of 5% is applied after subtracting a standard deduction and specified expenses. The tax laws apply to both Navajo and non-Indian businesses, with dissatisfied taxpayers enjoying the right of appeal to the Navajo Tax Commission and the Navajo Court of Appeals. The Navajo Tribe, uncertain whether federal approval was required, submitted the two tax laws to the Bureau of Indian Affairs of the Department of the Interior. The Bureau informed the Tribe that no federal statute or regulation required the Department of the Interior to approve or disapprove the taxes. Before any taxes were collected, petitioner, a substantial mineral lessee on the Navajo Reservation, brought this action seeking to invalidate the taxes. Petitioner claimed in the United States District Court for the District of Arizona that the Navajo taxes were invalid without approval of the Secretary of the Interior. The District Court agreed and permanently enjoined the Tribe from enforcing its tax laws against petitioner. The United States Court of Appeals for the Ninth Circuit reversed. 731 F. 2d 597 (1984). Relying on Southland Royalty Co. v. Navajo Tribe of Indians, 715 F. 2d 486 (CA10 1983), it held that no federal statute or principle of law mandated Secretarial approval. We granted certiorari. 469 U. S. 879 (1984). We affirm. II In Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), we held that the “power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management.” Id., at 137. Congress, of course, may erect “checkpoints that must be cleared before a tribal tax can take effect.” Id., at 155. The issue in this case is whether Congress has enacted legislation requiring Secretarial approval of Navajo tax laws. Petitioner suggests that the Indian Reorganization Act of 1934 (IRA or Act), 48 Stat. 984, 25 U. S. C. §461 et seq., is such a law. Section 16 of the IRA authorizes any tribe on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior. 25 U. S. C. §476. The Act, however, does not provide that a tribal constitution must condition the power to tax on Secretarial approval. Indeed, the terms of the IRA do not govern tribes, like the Navajo, which declined to accept its provisions. 25 U. S. C. §478. Many tribal constitutions written under the IRA in the 1930’s called for Secretarial approval of tax laws affecting non-Indians. See, e. g., Constitution and Bylaws of the Rosebud Sioux Tribe of South Dakota, Art. 4, § 1(h) (1935). But there were exceptions to this practice. For example, the 1937 Constitution and By-laws of the Saginaw Chippewa Indian Tribe of Michigan authorized the Tribal Council, without Secretarial approval, to “create and maintain a tribal council fund by . . . levying taxes or assessments against members or nonmembers.” Art. 6, § 1(g). Thus the most that can be said about this period of constitution writing is that the Bureau of Indian Affairs, in assisting the drafting of tribal constitutions, had a policy of including provisions for Secretarial approval; but that policy was not mandated by Congress. Nor do we agree that Congress intended to recognize as legitimate only those tribal taxes authorized by constitutions written under the IRA. Long before the IRA was enacted, the Senate Judiciary Committee acknowledged the validity of a tax imposed by the Chickasaw Nation on non-Indians. See S. Rep. No. 698, 45th Cong., 3d Sess., 1-2 (1879). And in 1934, the Solicitor of the Department of the Interior published a formal opinion stating that a tribe possesses “the power of taxation [which] may be exercised over members of the tribe and over nonmembers.” Powers of Indian Tribes, 55 I. D. 14, 46. The 73d Congress, in passing the IRA to advance tribal self-government, see Williams v. Lee, 358 U. S. 217, 220 (1959), did nothing to limit the established, pre-existing power of the Navajos to levy taxes. Some tribes that adopted constitutions in the early years of the IRA may be dependent on the Government in a way that the Navajos are not. However, such tribes are free, with the backing of the Interior Department, to amend their constitutions to remove the requirement of Secretarial approval. See, e. g., Revised Constitution and Bylaws of the Mississippi Band of Choctaw Indians, Art. 8, § 1(r) (1975). Petitioner also argues that the Indian Mineral Leasing Act of 1938, 52 Stat. 347, 25 U. S. C. §396a et seq., requires Secretarial approval of Navajo tax laws. Sections 1 through 3 of the 1938 Act establish procedures for leasing oil and gas interests on tribal lands. And §4 provides that “[a]ll operations under any oil, gas, or other mineral lease issued pursuant to the [Act] shall be subject to the rules and regulations promulgated by the Secretary of the Interior.” 25 U. S. C. §396d. Under this grant of authority, the Secretary has issued comprehensive regulations governing the operation of oil and gas leases. See 25 CFR pt. 211 (1984). The Secretary, however, does not demand that tribal laws taxing mineral production be submitted for his approval. Petitioner contends that the Secretary’s decision not to review such tax laws is inconsistent with the statute. In Merrion, we emphasized the difference between a tribe’s “role as commercial partner,” and its “role as sovereign.” 455 U. S., at 145-146. The tribe acts as a commercial partner when it agrees to sell the right to the use of its land for mineral production, but the tribe acts as a sovereign when it imposes a tax on economic activities within its jurisdiction. Id., at 146; cf. White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204, 206-208 (1983). Plainly Congress, in passing §4 of the 1938 Act, could make this same distinction. Even assuming that the Secretary could review tribal laws taxing mineral production, it does not follow that he must do so. We are not inclined to impose upon the Secretary a duty that he has determined is not needed to satisfy the 1938 Act’s basic purpose — to maximize tribal revenues from reservation lands. See S. Rep. No. 985, 75th Cong., 1st Sess., 2-3 (1937). Thus, in light of our obligation to “tread lightly in the absence of clear indications of legislative intent,” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 60 (1978), we will not interpret a grant of authority to regulate leasing operations as a command to the Secretary to review every tribal tax relating to mineral production. Finally, we do not believe that statutes requiring Secretarial supervision in other contexts, see, e. g., 25 U. S. C. §§81, 311-321, reveal that Congress has limited the Navajo Tribal Council’s authority to tax non-Indians. As we noted in New Mexico v. Mescalero Apache Tribe, 462 U. S. 324 (1983), the Federal Government is “firmly committed to the goal of promoting tribal self-government.” Id., at 334-335; see, e. g., Indian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. § 1451 et seq. The power to tax members and non-Indians alike is surely an essential attribute of such self-government; the Navajos can gain independence from the Federal Government only by financing their own police force, schools, and social programs. See President’s Statement on Indian Policy, 19 Weekly Comp. Pres. Doc. 98, 99 (Jan. 24, 1983). Ill The Navajo Government has been called “probably the most elaborate” among tribes. H. R. Rep. No. 78, 91st Cong., 1st Sess., 8 (1969). The legitimacy of the Navajo Tribal Council, the freely elected governing body of the Navajos, is beyond question. See, e. g., 25 U. S. C. §§ 635(b), 637, 638. . We agree with the Court of Appeals that neither Congress nor the Navajos have found it necessary to subject the Tribal Council’s tax laws to review by the Secretary of the Interior; accordingly, the judgment is Affirmed. Justice Powell took no part in the consideration or decision of this case. The Ninth Circuit rejected petitioner’s other contentions, which included Commerce Clause and contractual challenges to the two taxes. Petitioner has not sought review of this aspect of the Court of Appeals’ judgment. For example, in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 152-154 (1980), we sustained taxes imposed on nonmembers by the Colville and Lummi Tribes even though the Tribes were not organized under the IRA. Section 2 of the 1938 Act provides a limited exemption for tribes organized under the IRA. 25 U. S. C. § 396b. Because we conclude that the 1938 Act does not require the Secretary to review tribal taxes, however, the Navajo Tribe’s decision not to accept the IRA is irrelevant. The Tribal Council has 88 members who are elected every four years. There are approximately 79,000 registered tribal voters, and 69% of these persons voted in the last tribal election in 1982. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_othadmis	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Appellee, v. Robert S. BAINES, Defendant, Appellant. No. 86-1799. United States Court of Appeals, First Circuit. Argued Feb. 5, 1987. Decided March 2, 1987. Mark E. Dunlap, Portland, Me., for defendant, appellant. Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for appellee. Before BREYER, ALDRICH and SELYA, Circuit Judges. BAILEY ALDRICH, Senior Circuit Judge. Defendant Baines was indicted on two counts; Count I for conspiracy to possess with. the intent to distribute more than 1,000 pounds of marijuana, and Count II, for possession with intent to distribute the same. 21 U.S.C. §§ 841(a), 841(b)(1)(B) and 846. He was found guilty on Count I, and acquitted on Count II. He appeals, alleging error in the denial of his motions for acquittal and for a new trial for insufficiency of evidence; erroneous admission of declarations of alleged conspirators, and improper jury argument by the Assistant U.S. Attorney. We affirm. Briefly, the evidence would warrant the following. One Browning organized a shipment of some 5,000 pounds of marijuana from the Caribbean on board an auxiliary schooner. When the vessel was shortly to be off the Maine coast, and no arrangements had been made for offloading, Browning engaged one Kavanaugh, who, in turn, got in touch with defendant. On a drive from Portland to Rockland defendant allegedly agreed, in general terms, for about ten percent of the wholesale value, to accomplish the unloading, defendant to select the site and hire the workers. Defendant was instructed how to call the vessel, and communicate with the truckers who would take the marijuana to the stash house. Kavanaugh, who turned government witness with respect to the above, testified that he had no further contact, but that he informed Browning how defendant was to be reached. The eventual sale of the marijuana went through, and Kavanaugh received his share of the proceeds. Defendant’s claim that this evidence indicated only that he had expressed a willingness to negotiate and not that he had entered into the conspiracy does not wash. Equally untenable is defendant’s objection to the court’s Petrozziello finding admitting against him declarations of other conspirators made prior to the date that it could be found that defendant entered into the conspiracy. Such inclusion is the general rule. United States v. Jannotti, 729 F.2d 213, 221 (3d Cir.1984); United States v. Tombrello, 666 F.2d 485, 490-91 (11th Cir.1982), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291. The only exception we find, United States v. Gee, 695 F.2d 1165, 1169 (9th Cir.1983), is undiscussed dictum, for which the court cited two prior cases, neither of which offered even dicta in support. We need only recall the well-known simile that a conspiracy is like a train. When a party knowingly steps aboard, he is part of the crew, and assumes conspirator’s responsibility for the existing freight — or conduct — regardless of whether he is aware of just what it is composed. United States v. Sarno, 456 F.2d 875, 878 (1st Cir.1972). Fed.R.Evid. 801(d)(2)(E) does not change the common law. United States v. Badalamenti, 794 F.2d 821, 827 (2d Cir.1986). Defendant offers no reason why verbal acts in furtherance of the conspiracy should be treated differently from physical ones. It is true that in Petrozziello, 548 F.2d at 23, we spoke in terms of declarations subsequent to the defendant’s joinder. Nothing turned on the point, and there was no intention to overrule Sarno. Any limitation implied was inadvertent, and is hereby withdrawn. Cf. United States v. Badalamenti, ante. Finally, defendant complains of a remark by the prosecutrix in summation, emphasizing, in explaining the necessity of relying on informers, the seriousness of drug offenses. This was uncalled for. The court, however, made an extensive correction, and we would not reverse for this one, relatively minor, excess. Affirmed. . United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977). . We suggest the court might have done better to have noted its prior decision in United States v. Anderson, 532 F.2d 1218, 1230 (9th Cir.1976), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107. Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_casetyp1_1-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal". Roderick L. LeBRON, Jr., Appellant, v. Joseph VITEK, Director of Douglas County Corrections, Appellee. No. 84-1916. United States Court of Appeals, Eighth Circuit. Submitted Dec. 11, 1984. Decided Jan. 4, 1985. Timothy J. Cuddigan, Marks, Clare, Hopkins, Rauth & Cuddigan, and James Schae-fer, Gallup & Schaefer, Omaha, Neb., for appellant. Donald L. Knowles, Douglas County Atty. by Bernard L. Huelskamp, Deputy Douglas County Atty., Omaha, Neb., for appellee. Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge and BRIGHT, Circuit Judge. PER CURIAM. Roderick LeBron was convicted in Nebraska state court of receiving stolen property, specifically a Sylvania video cassette recorder (VCR), serial no. 8300933. His conviction was affirmed by the Supreme Court of Nebraska. State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984). In his federal petition for a writ of habeas corpus, LeBron claimed the seizure of the Sylvania VCR. which resulted in his conviction was based on an invalid warrant. The prosecution of LeBron arose from a search warrant executed at his home in June, 1982. The district court found that this court did not invalidate the entire warrant in the earlier federal proceeding on a charge of unlawful possession of a firearm. In reviewing the present habeas petition the district court read United States v. LeBron, 729 F.2d 533 (8th Cir.1984), in conjunction with United States v. Fitzgerald, 724 F.2d 633 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984), and found the part of the warrant specifying the Sylvania VCR valid. The district court also noted its belief that the Supreme Court of Nebraska had given LeBron the full and fair hearing on this issue required by Stone v. Powell, 428 U.S. 465, 481-82, 96 S.Ct. 3037, 3046-47, 49 L.Ed.2d 1067 (1976). LeBron argues that he neither briefed nor argued the issue of severability in his state appeal. Nonetheless, the Nebraska Supreme Court considered the issue and, relying on our Fitzgerald decision, found the specific authorization for the search and seizure of the Sylvania VCR could be severed from the invalid part of the warrant and upheld. State v. LeBron, 217 Neb. at 454, 349 N.W.2d at 921. The Nebraska Supreme Court’s opinion reflects careful consideration of the pertinent law and facts. We believe the state has given LeBron a full and fair hearing on the fourth amendment issue. Under Stone v. Powell, LeBron’s petition should be dismissed. Even if we were to accept LeBron’s contention that there can be no full and fair hearing without specific briefing and argument, his petition must be dismissed on its merits. As the district court observed, LeBron’s arguments are based on a misreading of our earlier opinion in United States v. LeBron, 729 F.2d 533. Our discussion in that case related only to the validity of the seizure of firearms under the general authority to search for records and stolen property. Contrary to LeBron’s argument, we did not hold the entire warrant invalid. We reaffirmed the concept of severability, LeBron, 729 F.2d at 537 n. 2, and, therefore, did not consider the parts of the warrant specifying electronic equipment. However, the clear implication of our opinion was that those parts were valid. See LeBron, 729 F.2d at 536. The Sylvania VCR was described with particularity, including its serial number, and seized shortly after the officers entered the premises— before the general search for records and other stolen property had begun. Thus, LeBron’s contention that the whole warrant was invalid, upon which he bases his petition, is without merit. The district court should be affirmed and LeBron’s petition dismissed. . That warrant has been the subject of previous litigation in this court. See United States v. LeBron, 729 F.2d 533 (8th Cir.1984). The warrant described LeBron’s residence and authorized a search for a specific Sony VCR, Panasonic Large Screen Television, and Sylvania VCR, each identified by serial number. In addition, the warrant allowed a general search for records and other stolen property. We previously struck down the last two categories as impermissibly broad, violating the fourth amendment. See id. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Appellee, v. Carl R. ANDERSON, Appellant. No. 19926. United States Court of Appeals, Eighth Circuit. Nov. 4, 1970. Jerome Daly, Savage, Minn., for appellant. Patrick J. Foley, Sp. Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before JOHNSEN, Senior Circuit Judge, VAN OOSTERHOUT and HEANEY, Circuit Judges. HEANEY, Circuit Judge. The appellant, Carl R. Anderson, was indicted by a federal grand jury on eleven counts of mail fraud under 18 U.S. C. § 1341 and twelve counts of securities fraud under 15 U.S.C. § 77q(a), the charges arising from his involvement in the promotion and construction of the Ridge Lutheran Home. Following trial by jury before the United States District Court for the District of Minnesota, Fourth Division, he was found guilty and sentenced to five years’ imprisonment and a $1,000 fine on Counts 1-11, and five years and $5,000 on Counts 12-23, the sentences to run consecutively. The appellant urges five grounds for reversal: (1) that the Federal Rules of Criminal Procedure under which the trial court proceeded are unconstitutional; (2) that the court erred in ruling that the constitutionality of the Federal Reserve System was not available as a defense; (3) that the trial court erred in failing to recuse himself upon appellant’s filing of an affidavit of prejudice pursuant to 28 U.S.C. § 144; (4) that the court erred in refusing to permit one Alfred M. Joyce to participate, in the trial on behalf of the appellant; and (5) that the evidence was insufficient to sustain the conviction; We affirm. The appellant’s first two allegations may be disposed of summarily. The appellant argues that the rules of the District Court, one of which allows the court to conduct the voir dire of the jury to the exclusion of counsel, are unconstitutional. This Court long ago determined that the rule-making power of the federal courts is properly delegable by the Congress, Gallagher v. United States, 82 F.2d 721 (8th Cir. 1936). Congress has granted to the Supreme Court and the District Courts power to prescribe rules for the conduct of their business. 28 U.S.C. § 2071. Rule 24(a) of the Federal Rules of Criminal Procedure, 18 U.S.. C., gives to the court discretion to conduct voir dire of the jury. This specific rule was held constitutional by the Court of Appeals for the Fourth Circuit in United States v. Duke, 409 F.2d 669 (4th Cir. 1969), cert. denied, 397 U.S. 1062, 90 S.Ct. 1497, 25 L.Ed.2d 683 (1970). Pursuant to 28 U.S.C. § 2071, and Rule 57(a), 18 U.S.C., Rule 6, subd. C of the Local Rules of the United States District Court for the District of Minnesota prescribes that voir dire examination shall be conducted by the court, with the opportunity for counsel to submit questions to be propounded to the jury. The trial court here asked the jury all questions requested by the appellant. We hold that the rules complained of are constitutional and that the appellant’s appeal on this basis must, therefore, fail. Similarly, the constitutionality of the Federal Reserve System has been previously sustained. The appellant’s argument is that the Federal Reserve notes transferred to the appellant as part of his scheme had no value, because of the unconstitutionality of the Federal Reserve System, and that the appellant could not have been convicted because fraud requires that the victim part with something of value. This argument is without merit. Horne v. Federal Reserve Bank of Minneapolis, 344 F.2d 725 (8th Cir. 1965). The appellant’s third ground alleges error in the failure of the trial judge to recuse himself. The appellant filed two affidavits of prejudice against the presiding judge. The first affidavit stated in part: “* * * That [Anderson] has good reason to believe, does believe and so states thatb (sic) because of Bias and Prejudice on the part of Miles Lord, one of the Judges of the above named Court a fair trial or hearing of any kind cannot result with said Judge presiding. “That Anderson has had the opportunity to observe the attitude, manner and demeanor of Mr. Lord and have (sic) heard his statements in derrogation (sic) of the Constitution of the United States and in defiance of the Government thereof, and in defiance of the sovereignty of the People of the United States, and Anderson is satisfied beyond any doubt that Mr. Lord has a deep, abiding and lasting prejudice against the Constitution of the United States and a bias in favor of those subversives advocating the overthrow of the Constitutions of the United States and of the State of Minnesota. That in chambers at a so called Pre-trial of his Indictment Mr. Lord made the statement that if Anderson continued in his insistanee (sic) upon the position that he has taken in his application for Writ of Prohibition now before the U. S. Supreme Court that he not only would probably be convicted but that he would instruct the Jury that Anderson had put up no defense, when at no time the Law requires Anderson to do so.” The writ of prohibition referred to was filed in the United States Supreme Court against all of the judges of the United States District Court, District of Minnesota, to restrain the judges from proceeding under the indictment in this case on the theory that the Federal Rules of Criminal Procedure are unconstitutional and also on the theory that the Federal Reserve System is unconstitutional. The second affidavit, charging that-the District Court was part of a political conspiracy to aid a member of a Minneapolis law firm to steal the property involved in the Ridge Lutheran Home project for himself and the “so-called Lutheran Church-Missouri Synod”, was totally without factual support and, thus, did not meet the requirement of 28 U.S.C. § 144 that “[t]he affidavit shall state the facts and the reasons for the belief that bias or prejudice exists * * Even if the second affidavit had stated sufficient facts, however, the trial court would properly have refused to recuse himself since the statute permits the filing of only one affidavit in any case. United States v. Hoffa, 382 F.2d 856 (6th Cir. 1967), cert. denied, 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984 (1968). In order to determine whether the court erred in failing to recuse himself under the first affidavit, its sufficiency must be tested. 28 U.S.C. § 144 states in part: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. “The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. * * * ” An affidavit must strictly comply with all of the statutory requirements before it will effectively disqualify a judge. Brotherhood of Loc. Fire. & Eng. v. Bangor & Aroostook R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 461 (1967). See also, Scott v. Beams, 122 F.2d 777 (10th Cir. 1941), cert. denied, 315 U.S. 809, 62 S.Ct. 794, 86 L.Ed. 1208 (1942); United States v. Hanrahan, 248 F.Supp. 471 (D.D.C.1965). Measured against the statutory requirements, we find the affidavit insufficient. First, the major thrust of the affidavit is that the trial court showed bias in its ruling on the constitutionality of the Federal Reserve System. The law is that a court’s ruling on a question of law does not show the personal bias required for disqualification. Knoll v. Socony Mobil Oil Company, 369 F.2d 425 (10th Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 138, reh. denied, 386 U.S. 1043, 87 S.Ct. 1490, 18 L.Ed.2d 618 (1967); Riojas v. Turner, 304 F.Supp. 559 (D.Utah 1969). Second, the affidavit sets out conclusory allegations that the trial judge has a “deep, abiding and lasting prejudice against the Constitution of the United States and a bias in favor of those subversives advocating the overthrow of the Constitutions of the United States and of the State of Minnesota.” Such allegations clearly do not meet the requirement that the affidavit “allege specific facts and not mere conclusions or generalities.” Brotherhood of Loc. Fire. & Eng. v. Bangor & Aroostook R. Co., supra. Third, the affidavit is deficient in its reliance, for a showing of prejudice, upon an incident which occurred at a pretrial conference after the ease had been assigned. Allegedly, the presiding judge made comments showing bias. This incident cannot be a basis for disqualification. The court’s demeanor and rulings in earlier phases of the same case may provide a basis for a claim of error, but they do not provide a basis for disqualification. Botts v. United States, 413 F.2d 41 (9th Cir. 1969). Bias and prejudice must stem from some extrajudicial source and result in an opinion on the merits on some basis other than what the judge has learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). We hold, therefore, that the affidavit was fatally defective. When an affidavit does not meet the requirements imposed by law, the judge has an obligation not to disqualify himself. United States v. Tropiano, 418 F.2d 1069 (2nd Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970); United States v. Hoffa, supra. Thus, the trial judge’s retention of the case was not error. The appellant also alleges that the court below committed error in not permitting Alfred M. Joyce to participate in the trial. Joyce had been disbarred by the Minnesota Supreme Court in 1954. In re Joyce, 242 Minn. 427, 65 N.W.2d 581, cert. denied, Joyce v. Dell, 348 U.S. 883, 75 S.Ct. 124, 99 L.Ed. 694 (1954). The record is in conflict on the question whether Joyce was disbarred from practicing in Federal District Court. But we need not decide whether Joyce was authorized to practice law in the Federal District Court since we agree with the government that Joyce never made a serious effort at representing the appellant. Joyce’s attempts at representation were three. In September, 1968, a power of attorney, naming Joyce as attorney at law and in fact, was filed by the appellant. The appellant had been represented by another attorney, Jerome Daly, since indictment and it was clear that Daly was to be retained as primary counsel. After the power of attorney was filed, Joyce made no appearances until April 7, 1969, when he appeared at pretrial proceedings in the spectators’ section. At that time, while Daly, the appellant’s attorney of record, was engaged in discussion with Joyce, the trial court instructed the two that they were to have no further conversations in the courtroom and that Joyce was not a member of the bar of that court. Joyce made no further attempt to appear personally on behalf of the appellant nor did he file a formal challenge to the court's ruling. The last “appearance” occurred later in April when Joyce sent a letter to the United States District Attorney personally attacking him. It closed with the following paragraph: “Be so right and just as to formulize (sic) our situation, by filing a motion for trial or dismissal. I will be content to sit beyond the rail with a walkie-talkie and watch the performance.” Without discussing our own evaluation of the seriousness of Joyce’s attempts at an advocacy role, we note that the appellant was adequately represented by Mr. Daly and that he expressed his satisfaction with that representation on several occasions. The appellant indicated, before closing argument, that he believed he had received a fair trial. Even if we assume arguendo that the court erred in not permitting Joyce to act as co-counsel, there is no showing that the appellant was prejudiced thereby. Finally, the appellant contends that the evidence was insufficient to sustain the verdict. We have examined the voluminous record and we conclude that the evidence is ample to sustain the appellant’s conviction. Without reciting specific items of the government’s proof, we note that there was sufficient evidence showing a violation of 18 U.S..C. § 1341, the mail fraud section. Innumerable exhibits were introduced which tended to prove that the appellant had used the mails as a means of transmitting fraudulent and misleading information about the project he was engaged in, with the intent to induce the purchase of Ridge Lutheran Home bonds. There was also sufficient evidence to sustain the conviction under the securities fraud section, 15 U.S.C. § 77q(a). Merely as an example, the evidence included a letter to a prospective bond purchaser, signed by the appellant, which induced a belief in the following statements, all of which were untrue: (1) that Ridge Lutheran Home was directly connected with the Lutheran Church; (2) that Ridge Lutheran Home was part of a planned community development and as such would be partially financed by federal funds; (3) that an independent depository and paying agent would be maintained to assure the soundness of the investment. On the basis of all the evidence, we conclude that the trial court was correct in denying the appellant’s motion for a judgment of acquittal. The appellant’s conviction is, therefore, affirmed. . Rule 57(a), 18 U.S.C., merely provides that rules made by the District Courts shall not be inconsistent with the Federal Rules of Criminal Procedure. . The practice under the District Court’s rule is preferred to that in which the attorneys conduct the voir dire examination. See, Judicial Conference of the United States, Report of the Committee on the Operation of the Jury System, October, 1970; American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Approved Draft, 1968. . This is but one of a series of eases in which the appellant’s attorney has attempted to litigate the constitutionality of the Federal Reserve System. None of these suits has been successful. See, Koll v. Wayzata State Bank, 397 F.2d 124 (8th Cir. 1968) ; Joyce v. Northwestern State Bank of Appleton, No. 3-68 Civ. 32 (D.Minn.1968) ; Zurn v. Federal Reserve Bank, No. 4-66 Civ. 399 (D.Minn.1967) ; Wildanger v. Federal Reserve Bank, No. 4-66 Civ. 83 (D.Minn.1966). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_summary	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". TOMANENG v. REEVES. No. 10973. United States Court of Appeals Sixth Circuit. Feb. 14, 1950. J. Paul McNamara, and Walter J. Mackey, Columbus, Ohio (Thomas M. Quinn, Indianapolis, Ind., on the brief), for appellant. Wm. E. Knepper, and H. S. Kerr, Columbus, Ohio, for appellee. Before ALLEN, McALLISTER and MILLER, Circuit Judges. PER CURIAM. The sole question presented by this appeal is whether the decedent effected a change of beneficiary in accordance with the terms of a policy of life insurance which provides that the insured “shall have full power * * to designate a new beneficiary * * * by filing at the Home Office a written designation of beneficiary, which shall in no case be effective until the date upon which it is so filed.” The insurance company filed a bill of interpleader, joining the decedent’s wife and sister as defendants. The facts are in the main stipulated,, and are,as follows: On January 7, 1946, the decedent, who was insured in The Penn Mutual Life Insurance Company under a policy in which his wife, Margaret Oyler Reeves, was named beneficiary, wrote the agent of-the company at Fort Wayne, Indiana, a letter, the pertinent part of which reads: “Marital difficulties since my return ■has made it necessary to again change the beneficiary of my policy. I therefore request that the usual procedure be instituted making the present beneficiary Miss Mary Elizabeth Reeves — (my Sister) the recipient in the event anything happens to me.” On two previous occasions the decedent had changed the beneficiary in this same policy by the execution of “Change of Beneficiary” forms which he transmitted to the insurance company. After forwarding decedent’s letter of January 7, 1946, to the company’s home office, the agent wrote decedent that he was “ordering the -beneficiary forms for change to your sister, as per your request.” On January 16, 1946, the agent’s secretary wrote decedent enclosing a 'beneficiary form “recently requested,” and instructed decedent: “If this is in accordance with your wishes please sign both copies as indicated, having your signature witnessed, and -return -both to us. After certification at the Home Office the duplicate will be sent to you to be attached to the policy.” The forms were never signed by decedent and were retained in his possession until his death by accident on April 11, 1946. Appellant contends that the letter of January 7, 1946, automatically constitutes the designation required under the policy and that its forwarding to the Home Office was the filing required. The District Court held that decedent’s wife was still the duly designated beneficiary of the policy at the time of decedent’s death and rendered judgment in her favor. Under Ohio law, controlling here, where the insured has the unconditional right to change the beneficiary, a change may be effected even if the provisions of the policy setting forth the manner of effecting the change are not complied with exactly. Atkinson v Metropolitan Life Ins. Co., 114 Ohio St. 109, 150 N.E. 748. But it must appear (1) that the insured had determined to change the beneficiary and (2) that he had done everything to the ■best of his ability to effect the change. Sun Life Assurance Co. of Canada v. Secoy, D.C., 72 F.Supp. 83; Union Central Life Ins. Co. v. Macbrair, 66 Ohio App. 144, 31 N.E.2d 172; Glen v. Aetna Life Ins. Co., 73 Ohio App. 452, 56 N.E.2d 951. Tested by these rules, the judgment of the District Court must be affirmed. Decedent’s letter of January 7, 1946, did not constitute an unequivocal designation of change of beneficiary. It merely embodied a request to institute the usual procedure for change of 'beneficiary, with which the decedent was familiar, namely, the sending and -receipt of the beneficiary forms, their execution, and their filing in the home office. The decedent was an educated man, an assistant professor of medicine at Ohio State University, and no doubt understood the meaning of the words he used when he deliberately requested the agent to institute “the usual procedure.” The forms were sent, received, but never executed, and the contemplated change was not effected. Decedent failed to do all that he could to effectuate the change. Appellant contends that the judgment of the District Court is contrary to the holding of this court in Schwerdtfeger v. American United Life Ins. Co., 6 Cir., 165 F.2d 928. There, however, the insured had signed a formal insurance company application designating his daughters as beneficiaries. The evidence of the insured’s determination to make the change was complete. Fie did the exact thing that the decedent here failed to do. Judgment affirmed. Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state	04	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". Harold William McCLEES, Appellant, v. UNITED STATES of America, Appellee. No. 17627. United States Court of Appeals Ninth Circuit. March 15, 1962. Harold William McClees, in pro. per. C. A. Muecke, U. S. Atty., Phoenix, Ariz., for appellee. Before MATHEWS, CHAMBERS and JERTBERG, Circuit Judges. PER CURIAM. Appellant appeals from an order of the district court denying his application for a writ of coram nobis and dismissing same. An examination of the contentions of appellant in the light of the record discloses no ground for the granting of the writ. The order of the district court denying the application and dismissing the same is affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_respondent	099	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES v. ANTELOPE et al. No. 75-661. Argued January 18, 1977 Decided April 19, 1977 Burger, C. J., delivered the opinion for a unanimous Court. Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Thornburgh, Harry R. Sachse, and Jerome M. Feit. Allen V. Bowles, by appointment of the Court, 429 U. S. 892, argued the cause and filed a brief for respondent Antelope. John W. Walker, by appointment of the Court, ibid., argued the cause and filed a brief for respondents Davison et al. Mr. Chief Justice Burger delivered the opinion of the Court. The question presented by our grant of certiorari is whether, under the circumstances of this case, federal criminal statutes violate the Due Process Clause of the Fifth Amendment by subjecting individuals to federal prosecution by virtue of their status as Indians. (1) On the night of February 18, 1974, respondents, enrolled Coeur d'Alene Indians, broke into the home of Emma Johnson, an 81-year-old non-Indian, in Worley, Idaho; they robbed and killed Mrs. Johnson. Because the crimes were committed by enrolled Indians within the boundaries of the Coeur d’Alene Indian Reservation, respondents were subject to federal jurisdiction under the Major Crimes Act, 18 U. S. C. § 1153. They were, accordingly, indicted by a federal grand jury on charges of burglary, robbery, and murder. Respondent William Davison was convicted of second-degree murder only. Respondents Gabriel Francis Antelope and Leonard Davison were found guilty of all three crimes as charged, including first-degree murder under the felony-murder provisions of 18 U. S. C. § 1111, as made applicable to enrolled Indians by 18 U. S. C. § 1153. (2) In the United States Court of Appeals for the Ninth Circuit, respondents contended that their felony-murder convictions were unlawful as products of invidious racial discrimination. They argued that a non-Indian charged with precisely the same offense, namely the murder of another non-Indian within Indian country, would have been subject to prosecution only under Idaho law, which in contrast to the federal murder statute, 18 U. S. C. § 1111, does not contain a felony-murder provision. To establish the crime of first-degree murder in state court, therefore, Idaho would have had to prove premeditation and deliberation. No such elements were required under the felony-murder component of 18 U. S. C. § 1111. Because of the difference between Idaho and federal law, the Court of Appeals concluded that respondents were “put at a serious racially-based disadvantage,” 523 F. 2d 400, 406 (1975), since the Federal Government was not required to establish premeditation and deliberation in respondents’ federal prosecution. This disparity, so the Court of Appeals concluded, violated equal protection requirements implicit in the Due Process Clause of the Fifth Amendment. We granted the United States’ petition for certiorari, 424 U. S. 907 (1976), and we reverse. (3) The decisions of this Court leave no doubt that federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications. Quite the contrary, classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the Federal Government’s relations with Indians. “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 557 (1832); they are 'a separate people’ possessing ‘the power of regulating their internal and social relations . . . .’ ” United States v. Mazurie, 419 U. S. 544, 557 (1975). Legislation with respect to these “unique aggregations” has repeatedly been sustained by this Court against claims of unlawful racial discrimination. In upholding a limited employment preference for Indians in the Bureau of Indian Affairs, we said in Morton v. Mancari, 417 U. S. 535, 552 (1974): “Literally every piece of legislation dealing with Indian tribes and reservations . . . single [s] out for special treatment a constituency of tribal Indians living on or near reservations. If these laws . . . were deemed invidious racial discrimination, an entire Title of the United States Code (25 U. S. C.) would be effectively erased . . . .” In light of that result, the Court unanimously concluded in Mancari: “The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasisovereign tribal entities . . . .” Id., at 554. Last Term, in Fisher v. District Court, 424 U. S. 382 (1976), we held that members of the Northern Cheyenne Tribe could be denied access to Montana State courts in connection with an adoption proceeding arising on their reservation. Unlike Mancari, the Indian plaintiffs in Fisher were being denied a benefit or privilege available to non-Indians; nevertheless, a unanimous Court dismissed the claim of racial discrimination: “[W]e reject the argument that denying [the Indian plaintiffs] access to the Montana courts constitutes impermissible racial discrimination. The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law.” 424 U. S., at 390. Both Mancari and Fisher involved preferences or disabilities directly promoting Indian interests in self-government, whereas in the present case we are dealing, not with matters of tribal self-regulation, but with federal regulation of criminal conduct within Indian country implicating Indian interests. But the principles reaffirmed in Mancari and Fisher point more broadly to the conclusion that federal regulation of Indian affairs is not based upon impermissible classifications. Rather, such regulation is rooted in the unique status of Indians as “a separate people” with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a “ 'racial' group consisting of ‘Indians’ . . . .” Morton v. Mancari, supra, at 553 n. 24. Indeed, respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d’Alene Tribe. We therefore conclude that the federal criminal statutes enforced here are based neither in whole nor in part upon impermissible racial classifications. (4) The challenged statutes do not otherwise violate equal protection. We have previously observed that Indians indicted under the Major Crimes Act enjoy the same procedural benefits and privileges as all other persons within federal jurisdiction. Keeble v. United States, 412 U. S. 205, 212 (1973). See 18 U. S. C. § 3242. Respondents were, therefore, subjected to the same body of law as any other individual, Indian or non-Indian, charged with first-degree murder committed in a federal enclave. They do not, and could not, contend otherwise. There remains, then, only the disparity between federal and Idaho law as the basis for respondents' equal protection claim. Since Congress has undoubted constitutional power to prescribe a criminal code applicable in Indian country, United States v. Kagama, 118 U. S. 375 (1886), it is of no consequence that the federal scheme differs from a state criminal code otherwise applicable within the boundaries of the State of Idaho. Under our federal system, the National Government does not violate equal protection when its own body of law is evenhanded, regardless of the laws of States with respect to the same subject matter. The Federal Government treated respondents in the same manner as all other persons within federal jurisdiction, pursuant to a regulatory scheme that did not erect impermissible racial classifications; hence, no violation of the Due Process Clause infected respondents’ convictions. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. Title 18 U. S. C. § 1153 at the time in question provided in pertinent part: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” The background leading up to enactment of the Major Crimes Act is discussed in Keeble v. United States, 412 U. S. 205, 209-212 (1973). As noted in that case, the Government has characterized the Major Crimes Act as “a carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land.” Id., at 209. Except for the offenses enumerated in the Major Crimes Act, all crimes committed by enrolled Indians against other Indians within Indian country are subject to the jurisdiction of tribal courts. 18 U. S. C. § 1152. Not all crimes committed within Indian country are subject to federal or tribal jurisdiction, however. Under United States v. McBratney, 104 U. S. 621 (1882), a non-Indian charged with committing crimes against other non-Indians in Indian country is subject to prosecution under state law. Title 18 U. S. C. § 1111 is the federal murder statute. It provides in pertinent part: “(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. “Any: other murder is murder in the second degree.” It should be emphasized that respondent William Davison was convicted only of second-degree murder, not felony murder, under 18 U. S. C. § 1111. See n. 2, supra. Federal law ostensibly extends federal jurisdiction to all crimes occurring in Indian country, except offenses subject to tribal jurisdiction. 18 U. S. C. § 1152. However, under United States v. McBratney, supra, and cases that followed, this Court construed § 1152 and its predecessors as not applying to crimes by non-Indians against other non-Indians. Thus, respondents correctly argued that, had the perpetrators of the crimes been non-Indians, the courts of Idaho would have had jurisdiction over these charges. Idaho statutes contain the following definition of first-degree murder: “All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate and premeditated killing is murder of the first degree. Any murder of any peace officer of this state or of any municipal corporation or political subdivision thereof, when the officer is acting in line of duty, . . . shall be murder in the first degree. ... All other kinds of murder are of the second degree.” Idaho Code § 18-4003 (Supp. 1976). Article I, § 8, of the Constitution gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” As was true in Mancari, federal jurisdiction under the Major Crimes Act does not apply to “many individuals who are racially to be classified as ‘Indians.’ ” 417 U. S., at 553 n. 24. Thus, the prosecution in this case offered proof that respondents are enrolled members of the Coeur d’Alene Tribe and thus not emancipated from tribal relations. Moreover, members of tribes whose official status has been terminated by congressional enactment are no longer subject, by virtue of their status, to federal criminal jurisdiction under the Major Crimes Act. United States v. Heath, 509 E. 2d 16, 19 (CA9 1974) (“While anthropologically a Klamath Indian even after the Termination Act obviously remains an Indian, his unique status vis-á-vis the Federal Government no longer exists”). In addition, as enrolled tribal members, respondents were subjected to federal jurisdiction only because their crimes were committed within the confines of Indian country, as defined in 18 U. S. C. § 1151. Crimes occurring elsewhere would not be subject to exclusive federal jurisdiction. Puyallup Tribe v. Department of Game, 391 U. S. 392, 397 n. 11 (1968). It should be noted, however, that enrollment in an official tribe has not been held to be an absolute requirement for federal jurisdiction, at least where the Indian defendant lived on the reservation and “maintained tribal relations with the Indians thereon.” Ex parte Pero, 99 F. 2d 28, 30 (CA7 1938). See also United States v. Ives, 504 F. 2d 935, 953 (CA9 1974) (dicta). Since respondents are enrolled tribal members, we are not called on to decide whether nonenrolled Indians are subject to 18 U. S. C. § 1153, and we therefore intimate no views on the matter. Other than their argument that the federal statutes create an invidious racial classification, respondents do not seriously contend that application of federal law to Indian tribes is so irrational as to deny equal protection. See n. 11, infra. They do point, however, to Congress’ relinquishment of criminal jurisdiction over Indians in six States pursuant to 18 U. S. C. § 1162. But § 1162 is simply one manifestation of Congress’ continuing concern with the welfare of Indian tribes under federal guardianship. Indeed, in adopting § 1162, Congress singled out certain reservations to remain subject to federal criminal jurisdiction. Congress’ selective approach in § 1162 reinforces, rather than undermines, the conclusion that legislation directed toward Indian tribes is a necessary and appropriate consequence of federal guardianship under the Constitution. Federal jurisdiction would extend to crimes, regardless of the race of the perpetrator or victim, committed on federal enclaves, such as military installations, or on vessels of the United States on the high seas. Congress has provided for federal jurisdiction over the crime of murder on a reservation, much as on other federal enclaves, 18 U. S. C. §§ 1111, 1153. But as our opinions have recognized that Indian reservations differ in certain respects from other federal enclaves, the statute has been construed as not encompassing crimes on the reservation by non-Indians against non-Indians. United States v. McBratney, 104 U. S. 621 (1882); see Surplus Trading Co. v. Cook, 281 U. S. 647, 651 (1930); Williams v. Lee, 358 U. S. 217, 219-220 (1959); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 171 (1973). Federal statutes do not single out Indians as such; non-Indian defendants are also covered if the victim was a member of the tribe. Respondents base their equal protection claim on the assumption that they have been disadvantaged by being prosecuted under federal law. In their view, their murder convictions were made more likely by the fact that federal prosecutors were not required to prove premeditation. However, they do not seriously question that the evidence adduced at their federal trial might well have supported a finding of premeditation and deliberation, since respondents were found to have beaten and kicked Mrs. Johnson to death during the course of a planned robbery. It should be noted, however, that this Court has consistently upheld federal regulations aimed solely at tribal Indians, as opposed to all persons subject to federal jurisdiction. See, e. g., United States v. Holliday, 3 Wall. 407, 417-418 (1866); Perrin v. United States, 232 U. S. 478, 482 (1914). See also Rosebud Sioux Tribe v. Kneip, ante, at 613-615, n. 47. Indeed, the Constitution itself provides support for legislation directed specifically at the Indian tribes. See n. 6, supra. As the Court noted in Morton v. Mancari, the Constitution therefore “singles Indians out as a proper subject for separate legislation.” 417 U. S., at 552. In this regard, we are not concerned with instances in which Indians tried in federal court are subjected to differing penalties and burdens of proof from those applicable to non-Indians charged with the same offense. Compare United States v. Big Crow, 523 F. 2d 955 (CA8 1975), cert, denied. 424 U. S. 920 (1976), and United States v. Cleveland, 503 F. 2d 1067 (CA9 1974), with United States v. Analla, 490 F. 2d 1204 (CA10), vacated and remanded, 419 U. S. 813 (1974). See 18 U. S. C. §1153 (1976 ed.) (which provides for uniform penalties for both Indians and non-Indians charged with assault resulting in serious bodily injury). That issue is not before us, and we intimate no views on it. Indeed, had respondents been prosecuted under state law, they may well have argued, under this Court’s holding in Seymour v. Superintendent, 368 U. S. 351 (1962), that the state conviction was void for want of jurisdiction. In Seymour, an enrolled member of the Colville Indian Tribe was convicted in state court of attempted burglary within Indian country. In reversing the state conviction, this Court held: “Since the burglary with which petitioner was charged occurred on property . . . within the . . . [Indian] reservation, the courts of Washington had no jurisdiction to try him for that offense.” Id., at 359. If state courts would have had no jurisdiction over respondents’ case, then state law does not constitute a meaningful point of reference for establishing a claim of equal protection. If we accepted respondents’ contentions, persons charged with crimes on federal military bases or other federal enclaves could demand that their federal prosecutions be governed by state law to the extent that state law was more “lenient” than federal law. The Constitution does not authorize this kind of gamesmanship. Indeed, any such rule, even assuming its workability, is flatly inconsistent with the Supremacy Clause of the Constitution, Art. VI, cl. 2. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_numresp	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Frank A. LOSCH, Appellant, v. BOROUGH OF PARKESBURG, PENNSYLVANIA; Lester J. Thomas, individually and as Chief of Police of the Borough of Parkesburg, Pennsylvania, and Andrew H. Wilson, III, individually and as a Patrolman for the Borough of Parkesburg, Pennsylvania. No. 83-1549. United States Court of Appeals, Third Circuit. Argued Feb. 28, 1984. Decided June 14, 1984. Justin J. McCarthy (argued), Dennis D. Brogan, Wusinich & McCarthy, West Chester, Pa., for appellant. John Churchman Smith (argued), Gibbons, Buckley, Smith, Palmer & Proud, P.C., Media, Pa., for appellees. Before ADAMS and SLOVITER, Circuit Judges, and TEITELBAUM, District Judge. Hon. Hubert I. Teitelbaum, Chief Judge of the United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT SLOVITER, Circuit Judge. This is an appeal from a grant of summary judgment for the defendants in an action brought under 42 U.S.C. § 1983. The appellant claims that defendants violated his First, Fourth and Fourteenth Amendment rights by initiating criminal prosecution against him maliciously and without probable cause. The district court found that there was no genuine -issue of fact regarding the defendants’ motivation and that the individual defendants were entitled to qualified immunity. We affirm as to the Borough and reverse as to the individual defendants. I. Facts and Procedural History The prosecution that forms the basis for this suit charged appellant Frank A. Losch with harassing and threatening a police officer by means of a note that Losch addressed to Officer Andrew H. Wilson, III, of the Parkesburg, Pennsylvania, police department. That note was taped to the front door of the Borough police station on July 19, 1980 at appellant’s request by one of his sons. The note said: Officer Wilson, I strongly advise you to stop picking on my wife and children and accepting information which is not true. I 'have intentions of taking this matter before the County District Attorney’s Office and having you arrested for a number of offenses. Respectfully yours, Frank A. Losch. The note was predicated on three earlier contacts between Wilson and members of the Losch family. In the first, in November 1979, Officer Wilson issued six citations to Losch’s son Bruce. The citations, most of them for traffic violations, were dismissed when Wilson failed to appear in time for the hearing. Shortly afterward, Wilson, who had missed other hearings in the past year, was suspended by the Mayor for three days without pay. Several months later, Drew Losch, another of Frank Losch’s sons, was charged with the burglary of two Parkesburg residences and the theft of motorcycles and a go-kart. Officer Wilson investigated the case and referred it to the County juvenile authorities. In the third incident, Wilson issued a citation for disorderly conduct against Losch’s wife, Dorothy, after a neighbor complained that Mrs. Losch had used obscene language and a racial epithet. When Frank Losch wrote the note to Wilson, charges were still pending against his wife and his son Drew. Several weeks later, Losch paid his wife’s fine; the charges against Drew were dropped when the youth who'had implicated him, and who pleaded guilty to charges of juvenile delinquency, refused to testify against him. Upon receiving Losch’s note, Wilson consulted Pennsylvania District Justice Carl Henry, and thereafter drafted charges that Losch violated two Pennsylvania statutes by writing the note. These provide, in relevant part: § 5504. Harassment by communication or address (a) Offense defined — A person commits a misdemeanor of the third degree, if, with intent to harass another, he: (1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly____ 18 Pa.C.S.A. § 5504(a)(1) (Purdon 1983). § 4702. Threats and other improper influence in official and political matters (a) Offenses defined — A person commits an offense if he: (1) threatens unlawful harm to any person with intent to influence his decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter____ 18 Pa.C.S.A. § 4702(a)(1) (Purdon 1983). The Police Chief, Lester J. Thomas, conferred with Wilson and Henry, and then signed a complaint charging Losch under both statutes. At Losch’s arraignment before District Justice Henry, bail was set at $1.00 and Losch was ordered to report his whereabouts to the bail agency once a week. At a subsequent hearing before another district justice, the Assistant District Attorney moved to withdraw the charges against Losch for insufficient evidence. Instead the district justice, on the motion of Losch’s attorney, dismissed the charges. Losch then filed this § 1983 action against the Borough of Parkesburg, Police Chief Thomas and Officer Wilson claiming that they prosecuted him maliciously and without probable cause. The complaint alleged that Thomas and Wilson prosecuted Losch in retaliation for Wilson’s suspension and in “an attempt to suppress and to abridge Plaintiff’s right to make reasonable comment concerning the manner in which public officials discharged their public duties____” The complaint also included a pendent state claim for malicious prosecution. The district court held that the Borough could not be liable on a respondeat superior' theory, observing that local governments may be sued under § 1983 only for acts implementing an official policy or custom. Losch v. Borough of Parkesburg, 566 F.Supp. 282, 285 (E.D.Pa.1983). The district court also rejected Losch’s claim that the Borough was negligent in hiring and supervision. Id. As to the individual defendants, the district court found no evidence to support a finding that they acted in bad faith. Id. at 288. II. Claims Against Individual Defendants In granting summary judgment for the individual defendants, the district court stated that “there are no material facts in dispute and no evidence on which a jury might reasonably find the officers acted maliciously or in bad faith.” 566 F.Supp. at 288. When a § 1983 action is based on defendants’ misuse of the criminal process by the initiation of criminal charges against plaintiff without probable cause or for personal animosity, as alleged in this case, it is necessary to distinguish between the alleged lack of probable cause or malice underlying the criminal charges as an element of plaintiff’s substantive § 1983 claim, and the allegation of malice sufficient to preclude defendants from summary judgment on their qualified immunity defense. The issues are analytically distinct, see Barker v. Norman, 651 F.2d 1107, 1123-24 (5th Cir.1981); S. Nahmod, Civil Rights & Civil Liberties Litigation § 3.02, at 64 (1979), although the parties in this case have not always observed the distinction. Since it is also unclear whether the district court found that there were no material fact issues on plaintiffs' substantive § 1983 claim or on defendants’ entitlement to the qualified immunity defense, we will consider each issue separately. We turn first to the question of pláintiff’s § 1983 claim itself. ■ Losch contends that the criminal complaint. against him was not based upon probable cause but rather that the charges were brought to satisfy Wilson’s and Thomas’ desire to “get” him for writing the letter and causing them annoyance and embarrassment, in violation of his Fourth and Fourteenth Amendment rights to be free from arrest without probable cause. He further claims that defendants were penalizing him for the exercise of his First Amendment rights. It is clear that the filing of charges without probable cause and for reasons of personal animosity is actionable under § 1983. Inada v. Sullivan, 523 F.2d 485, 487-88 (7th Cir.1975); see also Patzig v. O’Neil, 577 F.2d 841, 848 (3d Cir.1978). Similarly, institution of criminal action to penalize the exercise of one’s First Amendment rights is a deprivation cognizable under § 1983. Wilson v. Thompson, 593 F.2d 1375, 1377 (5th Cir.1979). Defendants, of course, respond that they had probable cause to institute the criminal charges. The question before us is whether the grant of summary judgment on this issue was appropriate. Resolving all doubts in Losch’s favor, we must decide whether, on the probable cause issue, there was before the district court “no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); see, e.g., Ettinger v. Johnson, 556 F.2d 692, 696-97 (3d Cir.1977). Any credible evidence contrary to the moving party’s version of events will defeat the summary judgment motion. We must evaluate for some minimal showing of credibility any evidence that the defendants did not have probable cause to charge Losch under the two Pennsylvania statutes. Appellant contends that an examination of the statutory provisions and their interpretation in Pennsylvania could lead no reasonable police officer to conclude they were applicable to Losch. We cannot view this contention as without substance. The statutory offense of “Harassment by communication or address” applies to a person who, “with intent to harass another ... addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly ____” 18 Pa.C.S.A. § 5504(a)(1). The only language conceivably relevant to the note written by Losch is the prohibition against addressing “indecent words” to another — a prohibition that at least one expert witness said could not reasonably apply to Losch’s message. Indeed, the Pennsylvania Superior Court, in construing this statute, has said, “We should be extremely reluctant to infer a criminal intent to harass solely from the filing of complaints with appropriate government agencies and the making of telephone calls during regular office hours lest we impermissibly chill a citizen’s constitutional freedoms.” Commonwealth v. Bender, 248 Pa.Super. 504, 513, 375 A.2d 354, 359 (1977). The other offense charged against Losch, “Threats and other improper influence in official and political matters,” is by its express terms limited to a threat of “unlawful harm” to a person acting as a public official. 18 Pa.C.S.A. § 4702(a)(1). A jury might be warranted in concluding that no reasonable officer would have construed Losch’s “threat” to complain to the district attorney as a threat of “unlawful harm” within the meaning of this statute. Furthermore, in his effort to withstand defendants’ motion for summary judgment, plaintiff did not rely only on his pleading allegations or on his own subjective interpretation of the events. He submitted statements by several witnesses to support the contention that the defendants had acted in bad faith. Thomas M. Keenan, a former Montgomery County Assistant District Attorney, attested to his belief that the charges were unwarranted and filed maliciously. App. at 656a-661a (Affidavit of Keenan). Dorothy Losch testified that Chief Thomas told her he was “going to get my husband and have him arrested” for writing the letter. App. at 412a (Deposition of Dorothy Losch). The Losches’ daughter Dawn recounted a statement by Thomas to her mother that “I am going to get your husband back____” App. at 770a (Deposition of Dawn Losch). The foregoing evidence, which is squarely contradicted by the defendants, raises a credibility issue. While summary judgment may be based on affidavits, conflicts of credibility should not be resolved on a hearing on the motion for summary judgment unless the opponent’s evidence is “too incredible to be believed by reasonable minds.” 6 J. Moore, Moore’s Federal Practice 11 56.15(4), at 56-524 (2d ed. 1976); see generally id. at 56-512.3-56-530. When there are conflicting statements by witnesses, cross-examination may be determinative. As the Second Circuit stated in one of the seminal summary judgment cases, “we cannot very well overestimate the importance of having the witness examined and cross-examined in presence of the court and jury.” Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir.1946) (citation omitted). See also Poller v. CBS, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). In cases where substantive liability depends on the reasonableness of the defendants in making a probable cause determination, there is often an issue of credibility. This is particularly true because defendants bear the burden at trial of prov-ing the defense of good faith and probable cause, see Pierson v. Ray, 386 U.S. 547, 556-57, 87 S.Ct. 1213, 1218-19, 18 L.Ed.2d 288 (1967), which would ordinarily require their own testimony. Thus, this court stat-. ed in Patzig v. O’Neil that the reasonableness of defendants’ probable-cause determination is for the jury. 577 F.2d at 848. See also B.C.R. Transport Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984). We express no views as to the persuasiveness of Losch’s evidence. The district court was not persuaded, but it is the jury and not the court who is the ultimate fact finder. We conclude only that Losch’s evidence is not incredible and should have survived a motion for summary judgment unless the defendants were entitled to prevail on some other basis. III. Qualified Immunity The individual defendants have invoked the defense of qualified immunity, under which “government officials performing discretionary functions generally are shielded from liability for eivil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). While the defendant has the burden of pleading and proving qualified immunity, id. at 815, 102 S.Ct. at 2737, the objective standard as announced in Harlow allows a court to cut short the inquiry into a defendant’s state of mind and to grant summary judgment in “insubstantial” claims. Id. at 818, 102 S.Ct. at 2738; Forsyth v. Kleindienst, 729 F.2d 267, 273 (3d Cir.1984). Qualified immunity protects a defendant who failed to observe a right or a legal standard that was not clearly established when the defendant acted. Thus, the Court held in Procunier v. Navarette, 434 U.S. 555, 562-65, 98 S.Ct. 855, 859-61, 55 L.Ed.2d 24 (1978), for example, that prison officials were not liable for interfering with an inmate’s mail because the interference occurred before there was any definite First Amendment protection for prisoners’ mail privileges. On the other hand, as the Harlow Court concluded, “[i]f the law was clearly established, the immunity defense ordinarily should fail,” unless the defendant “claims extraordinary circumstances and can prove that he neither knew nor should have known the relevant legal standard.” 457 U.S. at 818-19, 102 S.Ct. at 2739. In determining that the individual defendants were entitled to qualified immunity because the reach of the Pennsylvania criminal statutes may not have been clear, the district court misconceived the focus of the qualified immunity inquiry. As it applies here, the inquiry must focus instead on whether Losch had clearly established rights to petition the government in the manner that he did and to be free of malicious prosecution for that exercise. In fact, there was no ambiguity in the law guaranteeing Losch’s First and Fourteenth Amendment rights, or in the legal standard imposed by the Constitution on police officials. The Supreme Court has clearly held that prosecution of a citizen in retaliation “for nonprovocatively voicing his objection” to police conduct impermissibly punishes constitutionally protected speech. Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187-188, 38 L.Ed.2d 170 (1973) (per curiam). The Fifth Circuit, applying Harlow, stated, “A police officer ... is ordinarily charged to know the probable cause requirement.” Trejo v. Perez, 693 F.2d 482, 488 n. 10 (5th Cir.1982). Therefore, “[i]f an arrest lacks probable cause for its support it is, objectively speaking, in violation of clearly established law.” Id. The law protecting Losch from police officers’ use of their official position to launch a private vendetta was clearly established and not uncertain, in contrast to the circumstances before the Court in Procunier v. Navarette, supra. See also O’Hagan v. Soto, 725 F.2d 878, 879 (2d Cir.1984) (unsettled question of law regarding attachment of right to counsel). When a right is well established, as the Eighth Circuit recently said, “no one who does not know about it can be called ‘reasonable’ in contemplation of law.” Goodwin v. Circuit Court, 729 F.2d 541, 546 (8th Cir.1984). See Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975); Hart v. Walker, 720 F.2d 1436, 1441 (5th Cir.1983). Since defendants cannot satisfy the objective standard of Harlow, there was no need for the district court in connection with the qualified immunity defense to reach the question whether defendants “took the action with malicious intention to cause a deprivation of civil rights or other injury.” Harlow, 457 U.S. at 815, 102 S.Ct. at 2737 (quoting Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1001). Instead, the defendants’ reasonableness and good faith, vel non, in filing the criminal charges against Losch pertained only to their defense on the merits of the § 1983 claim, which as we have stated, presented a jury question. IV. Claim Against the Borough A local government may be sued under § 1983 only for acts implementing an official policy, practice or custom. Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). As the Monell Court made clear, there can be no § 1983 liability under a respondeat superior theory: “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. at 2037. See also Black v. Stephens, 662 F.2d 181, 191 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976); cf. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 391-95, 102 S.Ct. 3141, 3150-3152, 73 L.Ed.2d 835 (1982) (§ 1981). A plaintiff must identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir.1984). There is no evidence here of any policy or practice of the Borough of Parkesburg operating against the appellant. Appellant seeks to impose liability on the Borough on two bases. He argues first that Chief Thomas, one of the defendants, was a “de facto policy making official” and that therefore his actions represented official city policy, and, second that the Borough’s “official policy not to hire trained individuals, or to properly train them” led to the issuance of the improper complaint. As to the first basis, we are not persuaded that Thomas’ action in connection with the filing of the criminal charges against Losch is sufficient to constitute a municipal policy within the meaning of Monell. A policy cannot ordinarily be inferred from a single instance of illegality such as a first arrest without probable cause. Walters v. City of Ocean Springs, 626 F.2d 1317, 1323 (5th Cir.1980); Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir.1980), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1982). The facts in this record are unlike those before us in Black v. Stephens, where we sustained the City’s liability because the police chief “wrote and implemented an official police regulation [delaying any disciplinary investigation of a police officer’s conduct until the underlying arrest was resolved] which the jury found proximately caused ... [the] filfing of] unwarranted charges against [plaintiff].” 662 F.2d at 191. In this case even if Thomas were the final authority with regard to police activities, which the Borough disputes, there is no regulation or evidence of any repeated action by Thomas with regard to filing of charges that can transmute his actions in the Losch incident into a general Borough policy. Losch also claims that the Borough followed a practice of employing untrained officers and giving them “unbridled arrest powers.” However, he produced no evidence that the Borough’s general employment practices are deficient, or that defendants were inexperienced. The parties stipulated that Officer Wilson was certified under the Pennsylvania Municipal Police Officers’ Education and Training Act. Wilson had one year’s experience with the Chester County Sheriff’s Department when he was hired by Parkesburg. Chief Thomas began his law-enforcement career in 1969 and was Chief of Police in Atglen, Pennsylvania, for seven years before assuming the same post in Parkesburg. Further, assuming arguendo that plaintiff could recover under § 1983 for negligent supervision, a question we do not reach here, the district court found, and we agree, that plaintiff has failed to show a causal link between his injury and the Borough’s allegedly negligent practices. We therefore affirm the grant of summary judgment for the Borough of Parkesburg. V. Conclusion For the foregoing reasons set forth, we will reverse the judgment of the district court granting summary judgment for defendants Thomas and Wilson on plaintiffs’ § 1983 claim and remand for further proceedings on the merits. In view of our holding, we will also reverse the judgment of the district court, transferring the state law claims to state court, since the district court declined to exercise pendent jurisdiction over them only because no federal claims had survived. The summary judgment for the Borough of Parkesburg will be affirmed. Each party to bear its own costs on appeal. . There are other apparent inconsistencies concerning the reason for Wilson’s suspension and the extent to which he relied on District Justice Henry’s recommendation in drafting the charges. The defendants contend that Wilson was suspended for missing a hearing unrelated to the Losch family and that he had no cause to retaliate against the appellant. Brief for Appellees at 8, 13-15. But the Mayor’s suspension order indicated that Wilson was suspended for failure to report to six hearings, including Bruce Losch’s. App. at 599a. The defendants also contend that Justice Henry recommended charging Losch with both Harassment by communication or address and Threats and other improper influence, Brief for Appellees at 3, a claim supported by Henry. App. at 97a. Wilson testified, however, that he only conferred with Henry about the harassment statute, and then drafted the charge of Threats or other improper influence of his own accord. App. at 210a-211a. . Defendants apparently have not pleaded or argued that there were any "extraordinary circumstances," see Harlow, 457 U.S. at 819, 102 S.Ct. at 2738, and it seems unlikely there could have been any in these circumstances, see Trejo v. Perez, 693 F.2d at 488 n. 10 ("Whatever such extraordinary circumstances may be, their presence here has not been suggested nor do we find them.”). However, we will not foreclose the district court’s consideration of this issue on remand if properly raised. . See Note, A Theory of Negligence for Constitutional Torts, 92 Yale L.J. 683, 685-689 (1983). Question: What is the total number of respondents in the case? Answer with a number. 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. Jefferson B. SESSIONS, III, Attorney General, Petitioner v. Luis Ramón MORALES-SANTANA. No. 15-1191. Supreme Court of the United States Argued Nov. 9, 2016. Decided June 12, 2017. Edwin S. Kneedler, Washington, DC, for Petitioner. Stephen A. Broome, Los Angeles, CA, for Respondent. Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Washington, DC, for Petitioner. Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Donald E. Keener, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, DC, for Petitioner. Kathleen M. Sullivan, Todd Anten, Justin T. Reinheimer, Ellyde R. Thompson, Quinn Emanuel Urquhart, & Sullivan, New York, NY, Stephen A. Broome, Quinn Emanuel Urquhart, & Sullivan, LLP, Los Angeles, CA, for Respondent. Justice GINSBURG delivered the opinion of the Court. This case concerns a gender-based differential in the law governing acquisition of U.S. citizenship by a child born abroad, when one parent is a U.S. citizen, the other, a citizen of another nation. The main rule appears in 8 U.S.C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U.S.-citizen parent. The requirement, as initially prescribed, was ten years' physical presence prior to the child's birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U.S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U.S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child's birth. The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)'s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons "the equal protection of the laws." Nevertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination. I A We first describe in greater detail the regime Congress constructed. The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401, the first section in Chapter 1 of Title III of the Immigration and Nationality Act (1952 Act or INA), § 301, 66 Stat. 235-236. Section 1401 sets forth the INA's rules for determining who "shall be nationals and citizens of the United States at birth" by establishing a range of residency and physical-presence requirements calibrated primarily to the parents' nationality and the child's place of birth. § 1401(a) (1958 ed.) ; § 1401 (2012 ed.). The primacy of § 1401 in the statutory scheme is evident. Comprehensive in coverage, § 1401 provides the general framework for the acquisition of citizenship at birth. In particular, at the time relevant here, § 1401(a)(7) provided for the U.S. citizenship of "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph." Congress has since reduced the duration requirement to five years, two after age 14. § 1401(g) (2012 ed.). Section 1409 pertains specifically to children with unmarried parents. Its first subsection, § 1409(a), incorporates by reference the physical-presence requirements of § 1401, thereby allowing an acknowledged unwed citizen parent to transmit U.S. citizenship to a foreign-born child under the same terms as a married citizen parent. Section 1409(c) -a provision applicable only to unwed U.S.-citizen mothers-states an exception to the physical-presence requirements of §§ 1401 and 1409(a). Under § 1409(c)'s exception, only one year of continuous physical presence is required before unwed mothers may pass citizenship to their children born abroad. B Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U.S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household. José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Record 55-56. Puerto Rico was then, as it is now, part of the United States, see Puerto Rico v. Sanchez Valle, 579 U.S. ----, ---- - ----, 136 S.Ct. 1863, 1868-1869, 195 L.Ed.2d 179 (2016) ; 8 U.S.C. § 1101(a)(38) (1958 ed.) ("The term United States... means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the [U.S.] Virgin Islands." (internal quotation marks omitted)); § 1101(a)(38) (2012 ed.) (similar), and José became a U.S. citizen under the Organic Act of Puerto Rico, ch. 145, § 5, 39 Stat. 953 (a predecessor to 8 U.S.C. § 1402 ). After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)'s requirement of five years' physical presence after age 14. Record 57, 66. He did so to take up employment as a builder-mechanic for a U.S. company in the then-U.S.-occupied Dominican Republic. Ibid. By 1959, José attested in a June 21, 1971 affidavit presented to the U.S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. Id., at 57. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. Id., at 166-167. While the record before us reveals little about Morales-Santana's childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana's birth certificate as his father. Id., at 163-164, 167. José also related in the same affidavit that he was then saving money "for the susten[ance] of [his] family" in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. Id., at 57. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, id., at 368, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough, id., at 140, 369. C In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Id., at 426. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years' physical presence after age 14. See supra, at 1686 - 1687, and n. 3. An immigration judge rejected Morales-Santana's claim to citizenship derived from the U.S. citizenship of his father, and ordered Morales-Santana's removal to the Dominican Republic. Record 253, 366; App. to Pet. for Cert. 45a-49a. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government's refusal to recognize that he derived citizenship from his U.S.-citizen father violated the Constitution's equal protection guarantee. See Record 27, 45. The Board of Immigration Appeals (BIA) denied the motion. App. to Pet. for Cert. 8a, 42a-44a. The United States Court of Appeals for the Second Circuit reversed the BIA's decision. 804 F.3d 520, 524 (2015). Relying on this Court's post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. Id., at 527-535. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen. Id., at 535-538. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar, 536 F.3d 990 (2008), see 804 F.3d, at 530, 535, n. 17. We granted certiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States, 564 U.S. 210, 131 S.Ct. 2312, 180 L.Ed.2d 222 (2011) (per curiam ). Taking up Morales-Santana's request for review, 579 U.S. ---- (2016), we consider the matter anew. II Because § 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana's birth and was not accorded the right an unwed U.S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father's right to the equal protection of the laws. Ordinarily, a party "must assert his own legal rights" and "cannot rest his claim to relief on the legal rights... of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). But we recognize an exception where, as here, "the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ). José Morales' ability to pass citizenship to his son, respondent Morales-Santana, easily satisfies the "close relationship" requirement. So, too, is the "hindrance" requirement well met. José Morales' failure to assert a claim in his own right "stems from disability," not "disinterest," Miller v. Albright, 523 U.S. 420, 450, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O'Connor, J., concurring in judgment), for José died in 1976, Record 140, many years before the current controversy arose. See Hodel v. Irving, 481 U.S. 704, 711-712, 723, n. 7, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (children and their guardians may assert Fifth Amendment rights of deceased relatives). Morales-Santana is thus the "obvious claimant," see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the "best available proponent," Singleton v. Wulff, 428 U.S. 106, 116, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), of his father's right to equal protection. III Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (women are the "center of home and family life," therefore they can be "relieved from the civic duty of jury service"); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163 (1948) (States may draw "a sharp line between the sexes"). Today, laws of this kind are subject to review under the heightened scrutiny that now attends "all gender-based classifications." J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; see, e.g., United States v. Virginia, 518 U.S. 515, 555-556, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits "on the basis of the sex of the qualifying parent," our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee. Califano v. Westcott, 443 U.S. 76, 84, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) ; see id., at 88-89, 99 S.Ct. 2655 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, 430 U.S. 199, 206-207, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors' benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648-653, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688-691, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76-77, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child's estate). Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we declared unconstitutional in Reed,Frontiero,Wiesenfeld,Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an "exceedingly persuasive justification." Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981) (internal quotation marks omitted). A The defender of legislation that differentiates on the basis of gender must show "at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ; alteration in original); see Tuan Anh Nguyen v. INS, 533 U.S. 53, 60, 70, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). Moreover, the classification must substantially serve an important governmental interest today, for "in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality... that once passed unnoticed and unchallenged." Obergefell v. Hodges, 576 U.S. ----, ----, 135 S.Ct. 2584, 2603, 192 L.Ed.2d 609 (2015). Here, the Government has supplied no "exceedingly persuasive justification," Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted), for § 1409(a) and (c)'s "gender-based" and "gender-biased" disparity, Westcott, 443 U.S., at 84, 99 S.Ct. 2655 (internal quotation marks omitted). 1 History reveals what lurks behind § 1409. Enacted in the Nationality Act of 1940 (1940 Act), see 54 Stat. 1139-1140, § 1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation's citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child. Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. "[D]ominance [of] the husband," this Court observed in 1915, "is an ancient principle of our jurisprudence." Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4-15. Through the early 20th century, a male citizen automatically conferred U.S. citizenship on his alien wife. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604; see Kelly v. Owen, 7 Wall. 496, 498, 19 L.Ed. 283 (1869) (the 1855 Act "confers the privileges of citizenship upon women married to citizens of the United States"); C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 15-16, 20-21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. See, e.g., Act of Mar. 3, 1903, ch. 1012, § 37, 32 Stat. 1221 (wives and children entering the country to join permanent-resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S.Rep. No. 1515, 81st Cong., 2d Sess., 415-417 (1950) (wives exempt from literacy and quota requirements). And from 1790 until 1934, the foreign-born child of a married couple gained U.S. citizenship only through the father. For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child's natural and sole guardian. At common law, the mother, and only the mother, was "bound to maintain [a nonmarital child] as its natural guardian." 2 J. Kent, Commentaries on American Law 215-216 (8th ed. 1854); see Nguyen, 533 U.S., at 91-92, 121 S.Ct. 2053 (O'Connor, J., dissenting). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice. See Hearings on H.R. 6127 before the House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 43, 431 (1940) (hereinafter 1940 Hearings); 39 Op. Atty. Gen. 397, 397-398 (1939); 39 Op. Atty. Gen. 290, 291 (1939). See also Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2199-2205 (2014) (hereinafter Collins). In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed § 1409, explained: "[T]he mother [of a nonmarital child] stands in the place of the father... [,] has a right to the custody and control of such a child as against the putative father, and is bound to maintain it as its natural guardian." 1940 Hearings 431 (internal quotation marks omitted). This unwed-mother-as-natural-guardian notion renders § 1409's gender-based residency rules understandable. Fearing that a foreign-born child could turn out "more alien than American in character," the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Id., at 426-427. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture. See id., at 431; Collins 2203 (in "nearly uniform view" of U.S. officials, "almost invariably," the mother alone "concern[ed] herself with [a nonmarital] child" (internal quotation marks omitted)). 2 For close to a half century, as earlier observed, see supra, at 1689 - 1690, this Court has viewed with suspicion laws that rely on "overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 ; see Wiesenfeld, 420 U.S., at 643, 648, 95 S.Ct. 1225. In particular, we have recognized that if a "statutory objective is to exclude or 'protect' members of one gender" in reliance on "fixed notions concerning [that gender's] roles and abilities," the "objective itself is illegitimate." Mississippi Univ. for Women, 458 U.S., at 725, 102 S.Ct. 3331. In accord with this eventual understanding, the Court has held that no "important [governmental] interest" is served by laws grounded, as § 1409(a) and (c) are, in the obsolescing view that "unwed fathers [are] invariably less qualified and entitled than mothers" to take responsibility for nonmarital children. Caban v. Mohammed, 441 U.S. 380, 382, 394, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on "[s]tereotypes about women's domestic roles," the Court has observed, may "creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver." Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. See ibid. In light of the equal protection jurisprudence this Court has developed since 1971, see Virginia, 518 U.S., at 531-534, 116 S.Ct. 2264, § 1409(a) and (c)'s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic. B In urging this Court nevertheless to reject Morales-Santana's equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 ; and Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115. None controls this case. The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788-789, and n. 1, 97 S.Ct. 1473. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791, 97 S.Ct. 1473. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' "exceptionally broad power" to admit or exclude aliens. Id., at 792, 794, 97 S.Ct. 1473. This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review. See Nguyen, 533 U.S., at 60-61, 70, 121 S.Ct. 2053 ; Miller, 523 U.S., at 434-435, n. 11, 118 S.Ct. 1428 (opinion of Stevens, J.). The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U.S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U.S. citizenship to those children. See § 1409(a)(4) (2012 ed.). After Miller produced no opinion for the Court, see 523 U.S., at 423, 118 S.Ct. 1428 we took up the issue anew in Nguyen. There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. See 533 U.S., at 62-63, 121 S.Ct. 2053. Morales-Santana's challenge does not renew the contest over § 1409's paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana's father, by marrying Morales-Santana's mother, satisfied that requirement. Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent's prebirth residency in the United States, not to the parent's filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman "in order to have assimilated citizenship-related values to transmit to [his] child." 804 F.3d, at 531. And unlike Nguyen's parental-acknowledgment requirement, § 1409(a)'s age-calibrated physical-presence requirements cannot fairly be described as "minimal." 533 U.S., at 70, 121 S.Ct. 2053. C Notwithstanding § 1409(a) and (c)'s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing "statelessness," i.e., a child's possession of no citizenship at all. Even indulging the assumption that Congress intended § 1409 to serve these interests, but see supra, at 1683 - 1693, neither rationale survives heightened scrutiny. 1 We take up first the Government's assertion that § 1409(a) and (c)'s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U.S. values than unmarried women do. See supra, at 1694. Instead, it presents a novel argument, one it did not advance in Flores-Villar. An unwed mother, the Government urges, is the child's only "legally recognized" parent at the time of childbirth. Brief for Petitioner 9-10, 28-32. An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the "competing national influence" of the alien mother. Id., at 9-10. Congress, the Government suggests, designed the statute to bracket an unwed U.S.-citizen mother with a married couple in which both parents are U.S. citizens, and to align an unwed U.S.-citizen father with a married couple, one spouse a citizen, the other, an alien. Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U.S.-citizen mother will not accept parental responsibility. For an actual affiliation between alien father and nonmarital child would create the "competing national influence" that, according to the Government, justifies imposing on unwed U.S.-citizen fathers, but not unwed U.S.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, see id., at 9, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. See supra, at 1690 - 1693. Lump characterization of that kind, however, no longer passes equal protection inspection. See supra, at 1692 - 1693, and n. 13. Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end. The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U.S. citizen continuously present in the United States for one year at any point in her life prior to the child's birth. The transmission holds even if the mother marries the child's alien father immediately after the child's birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U.S.-citizen father who falls a few days short of meeting § 1401(a)(7)'s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child's birth and raises the child in the United States. One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151-152, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) (holding unconstitutional state workers' compensation death-benefits statute presuming widows' but not widowers' dependence on their spouse's earnings); Westcott, 443 U.S., at 88-89, 99 S.Ct. 2655. 2 The Government maintains that Congress established the gender-based residency differential in § 1409(a) and (c) to reduce the risk that a foreign-born child of a U.S. citizen would be born stateless. Brief for Petitioner 33. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U.S.-citizen mother than it was for the foreign-born child of an unwed U.S.-citizen father. Ibid. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers. As the Court of Appeals pointed out, with one exception, nothing in the congressional hearings and reports on the 1940 and 1952 Acts "refer[s] to the problem of statelessness for children born abroad." 804 F.3d, at 532-533. See Collins 2205, n. 283 (author examined "many hundreds of pre-1940 administrative memos... defend[ing] or explain[ing] recognition of the nonmarital foreign-born children of American mothers as citizens"; of the hundreds, "exactly one memo by a U.S. official... mentions the risk of statelessness for the foreign-born nonmarital children of American mothers as a concern"). Reducing the incidence of statelessness was the express goal of other sections of the 1940 Act. See 1940 Hearings 430 ("stateless[ness]" is "object" of section on foundlings). The justification for § 1409's gender-based dichotomy, however, was not the child's plight 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_state	53	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Ruben SANTIAGO MARTINEZ, Plaintiff-Appellee, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellant, v. FRED IMBERT, INC., Third-Party Defendant-Appellee. Ruben SANTIAGO MARTINEZ, Plaintiff-Appellant, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellee, v. FRED IMBERT, INC., Third-Party Defendant-Appellee. Ruben SANTIAGO MARTINEZ, Plaintiff-Appellee, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellee, v. FRED IMBERT, INC., Third-Party Defendant-Appellant. Nos. 74-1353 to 74-1355. United States Court of Appeals, First Circuit. Argued Feb. 4, 1975. Decided May 29, 1975. William M. Kimball, New York City, with whom Jose L. Novas-Dueno, Hartzell, Ydrach, Mellado, Santiago, Perez & Novas, San Juan, P. R., and Burlingham, Underwood & Lord, New York City, were on briefs, for Compagnie Generale Transatlantique. Charles A. Cordero, San Juan, P. R., for Fred Imbert, Inc. Harvey B. Nachman, San Juan, P. R., with whom Nachman, Feldstein & Gelpi, San Juan, P. R., was on briefs for Ruben Santiago Martinez. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. McENTEE, Circuit Judge. The familiar longshoreman-shipowner-stevedore triangle has led to the three appeals presented in this case. Plaintiff Santiago Martinez, employed as a longshoreman by Fred Imbert, Inc., was working in the hold of the M/V FORT DESAIX when he was struck and pinned by a moving pallet on November 9, 1968. He sued defendant Compagnie Generale Transatlantique, the shipowner, who in turn filed a third party complaint seeking indemnity from plaintiff’s employer, Imbert (the stevedore). By a general verdict the jury awarded the longshoreman $90,000 and found for the stevedore in the indemnity action. The shipowner appeals from both judgments. In addition, the longshoreman appeals from the district court’s denial of his motion to award attorney’s fees and prejudgment interest against shipowner for obstinacy, and the stevedore also appeals the denial of an award for attorney’s fees and other defense costs it incurred. We conclude that the indemnity action must be retried, but reject the other appeals. The shipowner’s first argument is that there was not sufficient evidence to allow the jury to find for the longshoreman. We disagree. The unloading on the ship was being done by a married winch operation. This required the use of two winches pulling against each other in synchronization to raise a pallet of cargo from the hold where the longshoreman was working. If one winch failed or was not operated correctly, the cargo would plumb under the opposite winch. In the instant case the onshore winch stopped or did not start and thus allowed the full pallet of cargo to plumb under the offshore winch and pin the longshoreman. There was testimony that the same winch had stopped about two hours earlier, but no injury resulted. On both occasions a member of the ship’s crew repaired the winch or replaced fuses and signaled the winchman to resume operations. The electric winches had separate control wheels, but one winch-man operated both winches by sticks attached to the wheels for two and one-half hours and then was relieved by the other winchman. On the unseaworthiness theory the shipowner essentially argues that the winch may have overloaded and blown a fuse because the winchman was confused as to which way to operate the winch or because the winchman accelerated the winch too rapidly. Even if a winchman was confused at trial as to which way to turn the winches in this married operation, that does not necessarily mean he was confused at the time of the accident years earlier. The important point is that both of these theories were presented to the jury under proper instructions, and the shipowner cannot reargue here that the ship was seaworthy because the evidence allowed an inference that the accident occurred because of a longshoreman’s negligence with no more than instantaneous effect. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). The evidence does not compel that inference, and therefore we need say nothing more about this argument. Nor are we impressed by the argument that the evidence showed the winch “stopped,” not that it “broke or failed.” By this distinction the shipowner attempts to avoid the effect of Greene v. Vantage S.S. Co., 466 F.2d 159, 163 (4th Cir. 1972): “Where an appliance or piece of equipment breaks or fails in the normal course of use, a plaintiff need not show why the failure occurred, but only that it did occur with the resulting injury.” But the jury could have found on the evidence that the winch did fail in the normal course of use. The last attack made on the unseaworthiness theory is that the ship would have been unseaworthy had a fuse not blown when it was overloaded, so the ship could not have been unseaworthy because a fuse blew. The defect in this argument is that the married winch operation may have required that a cutoff device stop both winches automatically if one failed. We are not prepared to say that a jury could not have so applied the seaworthiness requirement. Plaintiff’s separate count for negligence created complications that we have had occasion to speak about before. As the instant charge illustrates, it is difficult enough to charge a lay jury in a seaman’s case without adding what are not merely redundant questions, but the same questions over again in a more complicated form. The court charged the jury with respect to the negligence count that plaintiff claimed the shipowner to have been negligent in four particulars: “(a) In failing to furnish the plaintiff with a reasonably safe place to work, (b) In failing to supply the plaintiff with a reasonably safe vessel and appliances. (c) In failing to provide a proper winch to remove the cargo, (d) In failing to properly supervise the discharging operations.” It must be apparent that the first three claims were fully and exactly covered by the seaworthiness count and the court’s proper charge that proof as to any of them would impose unseaworthiness liability even though the shipowner was entirely without fault. No purpose is served by asking the jury to resolve the same' issues again with the added requirement that there be affirmative proof of negligence. To paraphrase the Court in Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961), having established a hole in the fence for one cat, there is no need to construct another hole for a second. We dealt with this question in Peymann v. Perini Corp., 507 F.2d 1318, 1323 (1st Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975), where we pointed out that the negligence count was superfluous when it merely re-alleged the same defects that made the ship unseaworthy. Here, it can have made no difference whether the court’s charge with respect to negligence under items (a), (b) and (c) was sufficiently favorable to the shipowner, or whether the evidence warranted a finding of lack of due care on the shipowner’s part. The charge was certainly no less favorable to the shipowner than was that on unseaworthiness, and both theories were submitted to the jury which returned, without objection, a general verdict. On this record we perceive no way in which the shipowner may have been prejudiced. The only additional matter alleged in the negligence count was item (d), failing to properly supervise the discharging operations. With respect to this, the court charged, “The shipowner has no duty to oversee, supervise or direct the methods by which or manner in which the stevedoring corporation and its employees perform the stevedoring services, but the shipowner must correct any dangerous condition if it is known or discovered by him.” After the charge, at the sidebar, the court stated that it had given this request of the shipowner inadvertently, as it was too favorable. On the shipowner’s appeal we need not consider whether it was too favorable for certainly it was favorable enough. Nor do we see any conflict between this instruction and item (d), which was not stated to the jury as a ruling of law, but simply as what plaintiff claimed. The court also charged that the shipowner might be denied indemnity if the jury found that the shipowner “by the action of the mate or the crew member, acquiesced or consented to the continuance of the stevedore’s conduct of which it now complains . . . ” and the shipowner apparently objects that this contradicted the charge that it had no duty to supervise. We see no inconsistency. To allow denial of indemnity upon a finding that the shipowner approved of the stevedore’s performance is not to impose liability upon a finding that the shipowner failed to disapprove of the stevedore’s performance. Since the shipowner’s single remaining objection to the charge in the longshoreman’s action depends on quoting the charge out of context, we find no error there. Consequently, the judgment for the longshoreman is affirmed. The longshoreman’s appeal from the finding that the shipowner was not obstinate within the meaning of Puerto Rico Rules of Civil Procedure 44.4(d) and (e) need not detain us long. By converse reasoning to that applied above, the shipowner had supportable claims either that it was not liable or that it was liable to only a small degree. The jury might have found that the winchman caused this accident by mishandling the winch, in which event Usner would have barred a finding of unseaworthiness. Or the jury might have found that the plaintiff longshoreman was contributorily negligent — by loading another pallet rather than standing out of the way during the lifting phase as he was required to. Since the first failure of this winch did not hurt anyone and should have alerted the longshoremen in the hold not to unnecessarily expose themselves to danger, the jury could have assessed the proportionate contribution of such negligence at a high figure. The diagnosis of plaintiff’s problem as “conversion reaction, chronic related” also produced substantial issues regarding the amount of damages. These considerations amply support the district court’s denial of counsel fees and prejudgment interest. We turn now to the indemnity issue. The shipowner objected to the following charge: “If a contributing cause of plaintiff’s injury was his own negligence, that is a factor to be considered by you in determining whether the stevedore has breached its warranty to the shipowner and [if] after considering all the evidence in the case you find that the stevedore has breached its warranty, then the shipowner would be entitled to recover indemnity from the stevedore.” Its claim is that the jury should have been charged that “If a contributing cause of plaintiff’s injury was his own negligence, then the shipowner would be entitled to recover indemnity.” Another portion of the charge adequately covered the discrete issue of whether shipowner was precluded from recovering indemnity by conduct on its part, see Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), so that issue is not involved here. This dispute is whether a longshoreman’s contributory negligence automatically establishes breach by the longshoreman’s employer of its warranty of workmanlike performance. In the Fifth Circuit it appears that contributory negligence by a longshoreman does not necessarily amount to breach of warranty by the stevedore. Instead, the longshoreman’s contributory negligence is regarded as one consideration in determining whether the stevedore breached its warranty. See Julian v. Mitsui O.S.K. Lines, Ltd., 479 F.2d 432, 433 (5th Cir.), cert. denied sub nom. Mitsui O.S.K. Lines, Ltd. v. Strachan Shipping Co., 414 U.S. 1093, 94 S.Ct. 725, 38 L.Ed.2d 551 (1973); D/S Ove Skou v. Hebert, 365 F.2d 341, 350 (5th Cir. 1966), cert. denied sub nom. Southern Stevedoring & Contracting Co. v. D/S Ove Skou, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970); Lusich v. Bloomfield S.S. Co., 355 F.2d 770, 778 (5th Cir. 1966). It appears that the Third Circuit accepts this approach also. See Shaw v. Lauritzen, 428 F.2d 247 (3d Cir. 1970). In the Second, Fourth, and Ninth Circuits the rule is that contributory negligence by the longshoreman within the scope of his employment is imputed to the stevedore. McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1336-37 (2d Cir.), cert. denied sub nom. Golten Marine Co. v. Trelleborgs Angfartygs A/B, 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed.2d 464 (1969); Nicroli v. Den Norske Afrika-Og Australielinie, 332 F.2d 651, 656 (2d Cir. 1964); Damanti v. A/S Inger, 314 F.2d 395, 399 (2d Cir.), cert. denied sub nom. Daniels & Kennedy, Inc. v. A/S Inger, 375 U.S. 834, 84 S.Ct. 46, 11 L.Ed.2d 64 (1963); United States Lines, Inc. v. Jarka Corp. of Baltimore, 444 F.2d 26, 28 (4th Cir. 1971); Arista Cia. DeVapores, S/A v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). This also may be the rule in the Sixth Circuit. See Turner v. Global Seas, Inc., 505 F.2d 751, 756-57 (6th Cir. 1974). We have recently held that “a stevedore’s warranty of workmanlike performance encompasses a promise to provide longshoremen free of negligence. . . . ” Carrillo v. Sameit Westbulk, 514 F.2d 1214 (1st Cir, 1975). In light of that well-settled rule it is difficult to argue that a stevedore has not breached its warranty where it turns out that one of its employees was negligent within the scope of his employment. We believe the correct rule is that the plaintiff longshoreman’s negligence must be imputed to his employer as a basis for indemnity. Of course, this dobs not mean that a finding of contributory negligence automatically establishes the shipowner’s right to indemnity. The fact finder may still find that there was conduct by the shipowner sufficient to preclude indemnity. See generally Hurdich v. Eastmount Shipping Co., 503 F.2d 397 (2d Cir. 1974). On the evidence and the charge in this case, coupled with the general verdict, it is entirely possible that the jury found the longshoreman contributorily negligent. Accordingly we are compelled to reverse the judgment for the stevedore and remand for a new trial. It is no answer that the jury may have found that the shipowner’s conduct in providing a defective winch was conduct precluding indemnity. If we knew that was their finding, we could avoid a new trial, but we cannot speculate that the error in the charge did not prejudice the shipowner. This posture evidences once again the usefulness of the procedure authorized in Fed.R.Civ.P. 49(b). If this case had been submitted to the jury for a general verdict accompanied by answers to appropriately phrased interrogatories, the needless waste of a new trial could have been avoided. The debate between the parties over who should bear responsibility for this shortcoming is somewhat shortsighted. Some measure of the blame for not requesting such a submission must be laid at the shipowner’s feet, but an equal measure must be assigned to the stevedore. And of course the court itself would have been well-advised to utilize this procedure. The remaining issue is the stevedore’s appeal. It argues that the ship-' owner was obstinate in not conceding unseaworthiness and in not being sufficiently receptive to settlement negotiations. Reliance is placed on Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972), where the imposition of attorney’s fees for obstinacy was upheld against the shipowner even though that party prevailed in the third party action. But this case is not analogous to Rivera. It upheld imposition of attorney’s fees for the benefit of the plaintiff longshoreman, not for the stevedore. Rivera also implicitly recognized that obstinacy in defending against a plaintiff does not necessarily establish obstinacy in claiming indemnity from a third-party defendant. See id. at 975 n. 11. Even if we had decided the appeal of the indemnity action differently, the facts of this case would not support a finding of obstinacy against the shipowner and in favor of the stevedore. We need not reach the stevedore’s remaining point, that it is entitled to counsel fees and other defense costs from the shipowner for its breach of its warranty to the stevedore, since that question has been mooted by our reversal in the indemnity action. The judgment for the plaintiff longshoreman is affirmed; the denial of his motion for an obstinacy award is also affirmed; the judgment for the stevedore is reversed and that case is remanded for a new trial; and the appeal of the stevedore is dismissed. These rules provide as follows: “(d) Attorney’s fees. Where a party has been obstinate, the court shall in its judgment impose on such person the payment of a sum for attorney’s fees.” “(e) [Legal interest.] In all cases of money collection where the party has been obstinate the court shall impose on such person the payment of interest according to law, from the time in which there appeared cause of action and in case of damages, such payment of interest shall be imposed from the time the filing of the claim was made and computed on the amount of the judgment . . ..” 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_respond1_1_3	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. The CHEMITHON CORPORATION, Appellant and Cross-Appellee, v. The PROCTER & GAMBLE COMPANY, and the Procter & Gamble Manufacturing Company, Appellees and Cross-Appellants. Nos. 13325, 13326. United States Court of Appeals, Fourth Circuit. Argued April 8, 1970. Decided June 2, 1970. William A. Marshall, Chicago, 111. (Charles J. Merriam, Alvin D. Shulman, and Merriam, Marshall, Shapiro & Klose, Chicago, 111., H. Vernon Eney and Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellant. George B. Finnegan, Jr., New York City (William D. Denson, Jerome G. Lee and Morgan, Finnegan, Durham & Pine, New York City, William A. Grimes and Ober, Grimes & Shriver, Baltimore, Md., on brief), for appellees and cross-appellants. Before SOBELOFF, WINTER and BUTZNER, Circuit Judges. PER CURIAM. Chemithon Corporation, holder of United States patents 3,024,258 and 3,-058,920, for making synthetic detergents, brought this action against Procter & Gamble Company, charging infringement of its patents and misappropriation of its trade secrets. P & G challenged the validity of the patents and sought attorneys’ fees under 35 U.S.C. § 285. The district court held that P & G used the processes claimed by the patents for more than a year before Chemithon filed its applications, and that its use was public within the meaning of 35 U.S.C. § 102(b). Consequently, the court held the patents invalid. It also held that P & G had not misappropriated Chemithon’s trade secrets, but it denied P & G’s request for attorneys’ fees. In reaching these conclusions the district judge applied correct principles of law to findings of fact that are amply supported by the evidence. Finding neither error nor abuse of discretion, we affirm on the opinion of the district court. Chemithon Corp. v. Procter & Gamble Co., 287 F.Supp. 291 (D.Md.1968). Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_certreason	L	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. GREAT WESTERN SUGAR CO. v. NELSON No. 78-1060. Decided May 29, 1979 Per Curiam. Respondent Nelson sued in the United States District Court for the District of Colorado to compel arbitration of his discharge by petitioner Great Western Sugar Co. The District Court held that the presumption of arbitrability consistently applied by the Court of Appeals for the Tenth Circuit required that the dispute be submitted to arbitration. Before petitioner’s appeal from the District Court’s order could be decided on the merits, the arbitration proceedings had been completed, and respondent filed a suggestion of mootness with the Court of Appeals. The Court of Appeals, in an order and opinion admirable for its conciseness, if not for its fidelity to our case law, said: “This matter comes on for consideration of the appel-lee’s suggestion of mootness and motion to vacate judgment of the District Court and to remand the captioned cause with instructions to dismiss. The appellant filed a brief in response arguing that the appeal be allowed to continue but if not the judgment of the trial court should be reversed and the cause be remanded with directions to dismiss. “Upon consideration whereof, the order of the Court is as follows: “1. The appeal is dismissed on the ground of mootness. “2. The judgment of the trial court is allowed to stand.” App. to Pet. for Cert. A5. In Duke Power Co. v. Greenwood County, 299 U. S. 259, 267 (1936), this Court said: “Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss.” (Emphasis supplied.) The course of action prescribed in Duke Power has been followed in countless cases in this Court. See, e. g., Preiser v. Newkirk, 422 U. S. 395 (1975); Parker v. Ellis, 362 U. S. 574 (1960); United States v. Munsingwear, Inc., 340 U. S. 36 (1950). Here neither the law nor the facts are in dispute. The Court of Appeals has proceeded on the assumption that the case is moot and has dismissed the appeal for that reason. It has nonetheless stated that the judgment of the District Court shall remain in effect, a statement totally at odds with the holding of Duke Power. The reasons for not allowing the District Court judgment to remain in effect when the fact of mootness had been properly called to the attention of the Court of Appeals were fully stated in United States v. Munsingwear, Inc., supra, at 39-41, and need not be restated here. The Court of Appeals’ disposition of this case may-have been the result of a desire to show approval of the reasoning of the District Court in directing arbitration, but that motive cannot be allowed to excuse its failure to follow the teaching of Duke Power Co., supra. Because the fact of mootness is clear, and indeed is relied upon by the Court of Appeals as its reason for dismissing petitioner’s appeal, and because the law as laid down by this Court in Duke Power Co., supra, and United States v. Munsingwear, Inc., supra, is equally clear, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with directions to vacate the District Court’s judgment and to remand the case for dismissal of respondent’s complaint. It is so ordered. United States v. Munsingwear, Inc., is perhaps the leading case on the proper disposition of cases that become moot on appeal. There the Court reiterated that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” 340 U. S., at 39. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
sc_adminaction	071	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. ENGLISH v. GENERAL ELECTRIC CO. No. 89-152. Argued April 25, 1990 Decided June 4, 1990 Blackmun, J., delivered the opinion for a unanimous Court. M. Travis Payne argued the cause for petitioner. With him on the briefs was Arthur M. Schiller. Christopher J. Wright argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Deputy Solicitor General Roberts, Allen H. Feldman, Steven J. Mandel, and Jeffrey A. Hennemuth. Carter G. Phillips argued the cause for respondent. With him on the brief were Rex E. Lee, Benjamin W. Heineman, Jr., Philip A. Lacovara, and Barton A. Smith. Briefs of amici curiae urging reversal were filed for the Attorney General of North Carolina et al. by Lacy H. Thornburg, Attorney General, pro se, John C. Brooks, pro se, Donnell Van Noppen III, and Michael G. Okun; for the National Conference of State Legislatures et al. by Benna Ruth Solomon; and for the Plaintiff Employment Lawyers Association by J. Michael McGuinness and Paul Tobias. Nicholas S. Reynolds and Richard K. Walker filed a brief for the Nuclear Management and Resources Council, Inc., as amicus curiae urging affirmance. Briefs of amici curiae were filed for the Government Accountability Project by Louis A. Clark; and for the National Whistleblower Center by Stephen M. Kohn and Michael D. Kohn. Justice Blackmun delivered the opinion of the Court. In the particular context of this case we must decide whether federal law pre-empts a state-law cause of action for intentional infliction of emotional distress. The suit is brought by an employee of a nuclear-fuels production facility against her employer and arises out of actions by the employer allegedly taken in retaliation for the employee’s nuclear-safety complaints. I Petitioner Vera M. English was employed from 1972 to 1984 as a laboratory technician at the nuclear-fuels production facility operated by respondent General Electric Company (GE) in Wilmington, N. C. In February 1984, petitioner complained to GE’s management and to the Nuclear Regulatory Commission (NRC) about several perceived violations of nuclear-safety standards at the facility, including the failure of her co-workers to clean up radioactive material spills in the laboratory. Frustrated by the company’s failure to address her concerns, petitioner on one occasion deliberately failed to clean a work table contaminated with a uranium solution during a preceding shift. Instead, she outlined the contaminated areas with red tape so as to make them conspicuous. A few days later, petitioner called her supervisor’s attention to the marked-off areas, which still had not been cleaned. As a result, work was halted while the laboratory was inspected and cleaned. Shortly after this episode, GE charged petitioner with a knowing failure to clean up radioactive contamination and temporarily assigned her to other work. On April 30, 1984, GE’s management informed petitioner that she would be laid off unless, within 90 days, she successfully bid for a position in an area of the facility where she would not be exposed to nuclear materials. On May 15, petitioner was notified of the company’s final decision affirming the disciplinary action taken against her. Petitioner did not find another position by July 30, and her employment was terminated. In August, petitioner filed a complaint with the Secretary of Labor charging GE with violating § 210(a) of the Energy Reorganization Act of 1974, as added, 92 Stat. 2951, 42 U. S. C. § 5851(a) (1982 ed.), which makes it unlawful for an employer in the nuclear industry to “discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee... “(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under, this Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act or the Atomic Energy Act of 1954, as amended; “(2) testified or is about to testify in any such proceeding or; “(3) assisted or participated or is about to assist or participate in any manner in such a proceeding... or in any other action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.” In her charge, petitioner alleged that GE’s actions constituted unlawful employment discrimination in retaliation for her nuclear-safety complaints to GE’s management and to the NRC. An Administrative Law Judge (ALJ) to whom the matter was referred found that GE had violated § 210(a) when it transferred and then discharged petitioner. The Secretary, however, dismissed the complaint as untimely because it had not been filed, as required by § 210(b)(1), within 30 days after the May 15 notice of the company’s final decision. In March 1987, petitioner filed a diversity action against GE in the United States District Court for the Eastern District of North Carolina. Petitioner in four counts raised two claims, one for wrongful discharge and one for intentional infliction of emotional distress. With respect to the latter, petitioner alleged that she was suffering from severe depression and emotional harm as a result of GE’s “extreme and outrageous conduct.” App. 20. Petitioner alleged that, in addition to transferring and ultimately firing her, GE (1) had removed her from the laboratory position under guard “as if she were a criminal,” id., at 14; (2) had assigned her to degrading “make work” in her substitute assignment, ibid.; (3) had derided her as paranoid; (4) had barred her from working in controlled areas; (5) had placed her under constant surveillance during working hours; (6) had isolated her from coworkers, even during lunch periods; and (7) had conspired to charge her fraudulently with violations of safety and criminal laws. Id., at 14-17. Petitioner sought punitive as well as compensatory damages. Although the District Court concluded that petitioner had stated a valid claim for intentional infliction of emotional distress under North Carolina law, it nonetheless granted GE’s motion to dismiss. 683 F. Supp. 1006, 1017-1018 (1988). The court did not accept GE’s argument that petitioner’s claim fell within the field of nuclear safety, a field that, according to GE, had been completely pre-empted by the Federal Government. The court held, however, that petitioner’s claim was pre-empted because it conflicted with three particular aspects of § 210: (1) a provision that bars recovery under the section to any employee who “deliberately causes a violation of any requirement of [the Energy Reorganization Act,] or of the Atomic Energy Act,” § 210(g); (2) the absence of any provision generally authorizing the Secretary to award exemplary or punitive damages; and (3) the provisions requiring that a whistle-blower invoking the statute file an administrative complaint within 30 days after the violation occurs, and that the Secretary resolve the complaint within 90 days after its filing. See §§ 210(b)(1) and (b)(2)(A). In the court’s view, Congress enacted this scheme to foreclose all remedies to whistle-blowers who themselves violate nuclear-safety requirements, to limit exemplary damages awards against the nuclear industry, and to guarantee speedy resolution of allegations of nuclear-safety violations— goals the court found incompatible with the broader remedies petitioner sought under state tort law. The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of petitioner’s emotional distress claim on the basis of the District Court’s reasoning. 871 F. 2d 22, 23 (1989). That court concluded that Congress had intended to foreclose nuclear whistle-blowers from pursuing state tort remedies and stated its belief that the District Court “correctly identified and applied the relevant federal and state law.” Id., at 23. Because of an apparent conflict with a decision of the First Circuit, see Norris v. Lumbermen’s Mutual Casualty Co., 881 F. 2d 1144 (1989), we granted certiorari. 493 U. S. 1055 (1990). II A The sole question for our resolution is whether the Federal Government has pre-empted petitioner’s state-law tort claim for intentional infliction of emotional distress. Our cases have established that state law is pre-empted under the Supremacy Clause, U. S. Const., Art. VI, cl. 2, in three circumstances. First, Congress can define explicitly the extent to which its enactments pre-empt state law. See Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 95-98 (1983). Preemption fundamentally is a question of congressional intent, see Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 299 (1988), and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one. Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a “scheme of federal regulation... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Although this Court has not hesitated to draw an inference of field pre-emption where it is supported by the federal statutory and regulatory schemes, it has emphasized: “Where... the field which Congress is said to have pre-empted” includes areas that have “been traditionally occupied by the States,” congressional intent to supersede state laws must be “‘clear and manifest.’” Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977), quoting Rice v. Santa Fe Elevator Corp., 331 U. S., at 230. Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, see, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941). See also Maryland v. Louisiana, 451 U. S. 725, 747 (1981). It is undisputed that Congress has not explicitly preempted petitioner’s state-law tort action by inserting specific pre-emptive language into any of its enactments governing the nuclear industry. The District Court and apparently the Court of Appeals did not rest their decisions on a field preemption rationale either, but rather on what they considered an actual tension between petitioner’s cause of action and the congressional goals reflected in § 210. In this Court, respondent seeks to defend the judgment both on the lower courts’ rationale and on the alternative ground that petitioner’s tort claim is located within a field reserved for federal regulation—the field of nuclear safety. Before turning to the specific aspects of § 210 on which the lower courts based their decisions, we address the field pre-emption question. B This is not the first case in which the Court has had occasion to consider the extent to which Congress has pre-empted the field of nuclear safety. In Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190 (1983), the Court carefully analyzed the congressional enactments relating to the nuclear industry in order to decide whether a California law that conditioned the construction of a nuclear powerplant on a state agency’s approval of the plant’s nuclear-waste storage and disposal facilities fell within a pre-empted field. Although we need not repeat all of that analysis here, we summarize briefly the Court’s discussion of the actions Congress has taken in the nuclear realm and the conclusions it drew from these actions. Until 1954, the use, control, and ownership of all nuclear technology remained a federal monopoly. The Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq. (1982 ed.), stemmed from Congress’ belief that the national interest would be served if the Government encouraged the private sector to develop atomic energy for peaceful purposes under a program of federal regulation and licensing. The Act implemented this policy decision by opening the door to private construction, ownership, and operation of commercial nuclear-power reactors under the strict supervision of the Atomic Energy Commission (AEC). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 63 (1978). The AEC was given exclusive authority to license the transfer, delivery, receipt, acquisition, possession, and use of all nuclear materials. As was observed in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 550 (1978): “The [Federal Government’s] prime area of concern in the licensing context... [was] national security, public health, and safety.” With respect to these matters, no significant role was contemplated for the States. In 1959, Congress amended the Atomic Energy Act in order to “clarify the respective responsibilities... of the States and the [Federal Government] with respect to the regulation of byproduct, source, and special nuclear materials,” 42 U. S. C. § 2021(a)(1) (1982 ed.), and generally to increase the States’ role. The 1959 amendments authorized the AEC, by agreements with state governors, to discontinue the Federal Government’s regulatory authority over certain nuclear materials under specified conditions. State regulatory programs adopted under the amendment were required to be “coordinated and compatible” with those of the AEC. § 2021(g). In 1974, Congress passed the Energy Reorganization Act, 88 Stat. 1233, 42 U. S. C. § 5801 et seq. (1982 ed.), which abolished the AEC and transferred its regulatory and licensing authority to the NRC. § 5841(f). The 1974 Act also expanded the number and range of safety responsibilities under the NRC’s charge. As was observed in Pacific Gas, the NRC does not purport to exercise its authority based upon economic considerations, but rather is concerned primarily with public health and safety. See 461 U. S., at 207. Finally, in 1978, Congress amended both the Atomic Energy Act and the Energy Reorganization Act. Pub. L. 95-601, 92 Stat. 2947. Among these amendments is § 210, 42 U. S. C. § 5851 (1982 ed.), which, as discussed above, encourages employees to report safety violations and provides a mechanism for protecting them against retaliation for doing so. After reviewing the relevant statutory provisions and legislative history, the Court in Pacific Gas concluded that “the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States.” 461 U. S., at 212. Although we ultimately determined that the California statute at issue there did not fall within the pre-empted field, we made clear our view that Congress intended that only “the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant.” Id., at 205. In the present dispute, respondent and petitioner disagree as to whether petitioner’s tort action falls within the boundaries of the pre-empted field referred to in Pacific Gas. Respondent maintains that the pre-empted field of “nuclear safety” is a large one, and that §210 is an integral part of it. Specifically, respondent contends that because the Federal Government is better able to promote nuclear safety if whistle-blowers pursue the federal remedy, the whole area marked off by § 210 should be considered part of the pre-empted field identified in Pacific Gas. Accordingly, respondent argues that all state-law remedies for conduct that is covered by § 210 are pre-empted by Congress’ decision to have the Federal Government exclusively regulate the field of nuclear safety. Petitioner and the United States as amicus curiae, on their part, contend that petitioner’s claim for intentional infliction of emotional distress is not pre-empted because the Court made clear in Pacific Gas that state laws supported by nonsafety rationales do not lie within the pre-empted field. They argue that since the state tort of intentional infliction of emotional distress is supported by a nonsafety rationale— namely, the State’s “substantial interest in protecting its citizens from the kind of abuse of which [petitioner] complain[s],” see Farmer v. Carpenters, 430 U. S. 290, 302 (1977)—petitioner’s cause of action must be allowed to go forward. We think both arguments are somewhat wide of the mark. With respect to respondent’s contention, we find no “clear and manifest” intent on the part of Congress, in enacting § 210, to pre-empt all state tort laws that traditionally have been available to those persons who, like petitioner, allege outrageous conduct at the hands of an employer. Indeed, acceptance of respondent’s argument would require us to conclude that Congress has displaced not only state tort law, which is at issue in this case, but also state criminal law, to the extent that such criminal law is applied to retaliatory conduct occurring at the site of a nuclear employer. For example, if an employer were to retaliate against a nuclear whistle-blower by hiring thugs to assault the employee on the job (conduct literally covered by § 210), respondent’s position would imply that the state criminal law prohibiting such conduct is within the pre-empted field. We simply cannot believe that Congress intended that result. Instead, we think the District Court was essentially correct in observing that while § 210 obviously bears some relation to the field of nuclear safety, its “paramount” purpose was the protection of employees. See 683 F. Supp., at 1013. Accordingly, we see no basis for respondent’s contention that all state-law claims arising from conduct covered by the section are necessarily included in the pre-empted field. Nor, however, can we accept petitioner’s position, or the reading of Pacific Gas on which it is based. It is true that the holding in that case was premised, in part, on the conclusion that the California ban on nuclear construction was not motivated by safety concerns. Indeed, the majority of the Court suggested that a “state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field.” 461 U. S., at 213. In other words, the Court defined the pre-empted field, in part, by reference to the motivation behind the state law. This approach to defining the field had some support in the text of the 1959 amendments to the Atomic Energy Act, which provided, among other things, that “[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” 42 U. S. C. § 2021(k) (1982 ed.) (emphasis added). But the Court did not suggest that a finding of safety motivation was necessary to place a state law within the pre-empted field. On the contrary, it took great pains to make clear that state regulation of matters directly affecting the radiological safety of nuclear-plant construction and operation, “even if enacted out of nonsafety concerns, would nevertheless [infringe upon] the NRC’s exclusive authority.” 461 U. S., at 212. Thus, even as the Court suggested that part of the pre-empted field is defined by reference to the purpose of the state law in question, it made clear that another part of the field is defined by the state law’s actual effect on nuclear safety. Because it is clear that the state tort law at issue here is not motivated by safety concerns, the former portion of the field argument is not relevant. The real issue, then, is whether petitioner’s tort claim is so related to the “radiological safety aspects involved in the... operation of a nuclear [facility],” see id., at 205, that it falls within the pre-empted field. In addressing this issue, we must bear in mind that not every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the pre-empted field. We have no doubt, for instance, that the application of state minimum wage and child labor laws to employees at nuclear facilities would not be pre-empted, even though these laws could be said to affect tangentially some of the resource allocation decisions that might have a bearing on radiological safety. Instead, for a state law to fall within the pre-empted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels. We recognize that the claim for intentional infliction of emotional distress at issue here may have some effect on these decisions, because liability for claims like petitioner’s will attach additional consequences to retaliatory conduct by employers. As employers find retaliation more costly, they will be forced to deal with complaints by whistle-blowers by other means, including altering radiological safety policies. Nevertheless, we believe that this effect is neither direct nor substantial enough to place petitioner’s claim in the pre-empted field. This result is strongly suggested by the decision in Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984). The Court there held that a claim for punitive damages in a state tort action arising out of the escape of plutonium from a federally licensed nuclear facility did not fall within the pre-empted field discussed in Pacific Gas. The Court reached this result notwithstanding the “tension between the conclusion that [radiological] safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages [including punitive damages] based on its own law of liability” governing unsafe working conditions. 464 U. S., at 256. Although the decision in Silkwood was based in substantial part on legislative history suggesting that Congress did not intend to include in the pre-empted field state tort remedies for radiation-based injuries, see id., at 251-256, we think it would be odd, if not irrational, to conclude that Congress intended to include tort actions stemming from retaliation against whistle-blowers in the pre-empted field but intended not to include tort actions stemming from radiation damage suffered as a result of actual safety violations. Potential liability for the kind of claim at issue in Silkwood will affect radiological safety decisions more directly than will potential liability under the kind of claim petitioner raises, because the tort claim in Silkwood attaches additional consequences to safety violations themselves, rather than to employer conduct that merely arises from allegations of safety violations. Moreover, and related, the prospect of compensatory and punitive damages for radiation-based injuries will undoubtedly affect nuclear employers’ primary decisions about radiological safety in the construction and operation of nuclear power facilities far more substantially than will liability under the kind of claim petitioner asserts. It is thus not surprising that we find no evidence of a “clear and manifest” intent on the part of Congress to pre-empt tort claims like petitioner’s. Cf. Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 186 (1988) (increased workers’ compensation award for injury caused by a safety violation at a Government-owned nuclear facility is “incidental regulatory pressure” that Congress finds acceptable). Accordingly, we conclude that petitioner’s claim does not lie within the pre-empted field of nuclear safety. c We now turn to the question whether, as the lower courts concluded, petitioner’s claim conflicts with particular aspects of § 210. On its face, the section does no more than grant a federal administrative remedy to employees in one industry against one type of employer discrimination—retaliation for whistle-blowing. Ordinarily, the mere existence of a federal regulatory or enforcement scheme, even one as detailed as § 210, does not by itself imply pre-emption of state remedies. The Court has observed: “Undoubtedly, every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law.... Instead, we must look for special features warranting pre-emption.” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985). Here, the District Court identified three “special features” of § 210 that it believed were incompatible with petitioner’s claim. The District Court relied first on § 210(g), which provides that “Subsection (a) of this section [the prohibition on employer retaliation] shall not apply” where an employee “deliberately causes a violation of any requirement of this Act or of the Atomic Energy Act.” According to the District Court and respondent, this section reflects a congressional desire to preclude all relief, including state remedies, to a whistle-blower who deliberately commits a safety violation referred to in § 210(g). Permitting any state-law claim based on whistle-blowing retaliation, the court reasoned, would frustrate this congressional objective. We do not agree. As an initial matter, we note that the text of § 210(g) specifically limits its applicability to the remedy provided by § 210(a) and does not suggest that it bars state-law tort actions. Nor does the legislative history of § 210 reveal a clear congressional purpose to supplant state-law causes of action that might afford broader relief. Indeed, the only explanation for any of the statute’s remedial limitations is the Committee Report’s statement that employees who deliberately violate nuclear-safety requirements would be denied protection under § 210(g) “[i]n order to avoid abuse of the protection afforded under this section.” S. Rep. No. 95-848, p. 30 (1978) (emphasis added). In any event, even if the District Court and respondent are correct in concluding that Congress wanted those who deliberately commit nuclear-safety violations, as defined under § 210(g), to be denied all remedies against employer retalia tion, this federal interest would be served by pre-empting state law only to the extent that it afforded recovery to such violators. See Norris v. Lumbermen’s Mutual Casualty Co., 881 F. 2d 1144, 1150 (CA1 1989). In the instant case, the ALJ found that petitioner had not deliberately committed a safety violation within the meaning of § 210(g), App. to Pet. for Cert. 44a, and neither the Secretary nor the lower courts have suggested otherwise. Thus, barring petitioner’s tort action would not even serve the federal interest the lower courts and respondent have gleaned from their reading of this section. The District Court also relied on the absence in § 210 of general authorization for the Secretary to award exemplary damages against employers who engage in retaliatory conduct. The District Court concluded, and respondent now argues, that this absence implies a congressional intent to bar a state action, like petitioner’s, that permits such an award. As the District Court put it, § 210 reflects “an informed judgment [by Congress] that in no circumstances should a nuclear whistler blower receive punitive damages when fired or discriminated against because of his or her safety complaints.” 683 F. Supp., at 1014. We believe the District Court and respondent have read too much into Congress’ decision not to authorize exemplary damages for most § 210 violations. First, even with respect to actions brought under § 210, the District Court was incorrect in stating that “in no circumstances” will a nuclear whistle-blower receive punitive damages; § 210(d) authorizes a district court to award exemplary damages in enforcement proceedings brought by the Secretary. Moreover, and more importantly, we think the District Court failed to follow this Court’s teaching that “[o]rdinarily, state causes of action are not pre-empted solely because they impose liability over and above that authorized by federal law.” California v. ARC America Corp., 490 U. S. 93, 105 (1989). Absent some specific suggestion in the text or legislative history of § 210, which we are unable to find, we cannot conclude that Congress intended to pre-empt all state actions that permit the recovery of exemplary damages. Finally, we address the District Court’s holding that the expeditious timeframes provided by Congress for the processing of § 210 claims reflect a congressional decision that no whistle-blower should be able to recover under any other law after the time for filing under § 210 has expired. The District Court reasoned, and respondent agrees, that if a state-law remedy is available after the time for filing a § 210 complaint has run, a whistle-blower will have less incentive to bring a § 210 complaint. As a result, the argument runs, federal regulatory agencies will remain unaware of some safety violations and retaliatory behavior and will thus be unable to ensure radiological safety at nuclear facilities. We cannot deny that there is some force to this argument, but we do not believe that the problem is as great as respondent suggests. First, many, if not most, retaliatory incidents come about as a response to safety complaints that employees register with federal regulatory agencies. The Federal Government thus is already aware of these safety violations, whether or not the employee invokes the remedial provisions of § 210. Also, we are not so sure as respondent seems to be that employees will forgo their § 210 options and rely solely on state remedies for retaliation. Such a prospect is simply too speculative a basis on which to rest a finding of pre-emption. The Court has observed repeatedly that pre-emption is ordinarily not to be implied absent an “actual conflict.” See, e. g., Savage v. Jones, 225 U. S. 501, 533 (1912). The “teaching of this Court’s decisions... enjoin[s] seeking out conflicts between state and federal regulation where none clearly exists.” Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960). III We conclude that petitioner’s claim for intentional infliction of emotional distress does not fall within the pre-empted field of nuclear safety as that field has been defined in prior cases. Nor does it conflict with any particular aspect of § 210. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Although, technically, petitioner was placed on a layoff status on July 30, and retained certain benefits and recall rights at that point, as a practical matter she no longer was employed by GE after that date. If an employee believes that he has been discharged or otherwise discriminated against in violation of the statute, he may file a complaint with the Secretary of Labor within 30 days after the violation occurs. § 210(b)(1). The Secretary then must investigate the alleged violation, hold a public hearing, and, within 90 days of receiving the complaint, issue an order that either provides or denies relief. § 210(b)(2)(A). If a violation is found, the Secretary may order reinstatement with backpay, award compensatory damages, and require the violator to pay the employee’s costs and attorney’s fees. § 210(b)(2)(B). Any person adversely affected Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. RODRIGUEZ et al. v. POPULAR DEMOCRATIC PARTY et al. No. 81-328. Argued March 22, 1982 Decided June 7, 1982 Burger, C. J., delivered the opinion for a unanimous Court. Phillip A. Lacovara argued the cause for appellants. With him on the briefs were Gerald Goldman and William R. Stein. Abe Fortas argued the cause for appellees. With him on the briefs was Rafael Hemandez-Colon. Chief Justice Burger delivered the opinion of the Court. The question presented by this appeal is whether Puerto Rico may by statute vest in a political party the power to fill an interim vacancy in the Puerto Rico Legislature. The Supreme Court of Puerto Rico held that such a procedure did not violate the United States Constitution. We noted probable jurisdiction, 454 U. S. 938 (1981), and we affirm. I In the November 4, 1980, Puerto Rico general election, Ramon Muniz, a member of appellee Popular Democratic Party, was elected to the Puerto Rico House of Representatives from District 31. Muniz died on January 28, 1981. The Governor of Puerto Rico, a member of the opposition New Progressive Party, subsequently called for a “by-election” — open to all qualified voters in District 31 — to fill the vacancy caused by Muniz’ death. The Governor purported to act pursuant to Articles 5.006 and 5.007 of the Electoral Law of Puerto Rico, P. R. Laws Ann., Tit. 16, §§3206, 3207 (Supp. 1980). On March 3, 1981, the Popular Democratic Party instituted this action in the Superior Court of Puerto Rico, alleging that Articles 5.006 and 5.007 authorized only candidates and electors affiliated with the Party to participate in the by-election. Appellants, 10 qualified electors in District 31 who are not affiliated with the Popular Democratic Party, intervened as defendants. On March 20,1981, the Superior Court entered judgment for the Popular Democratic Party; it ordered the Governor and General Administrator of Elections to limit participation in the by-election to Party members. App. to Juris. Statement 36a. A divided Supreme Court of Puerto Rico modified the Superior Court’s judgment. It interpreted Articles 5.006 and 5.007 to require a by-election only in the event that the party of the legislator vacating the seat fails to designate a replacement within 60 days after the vacancy occurred; if the party selects a single candidate within the 60-day period, that candidate is “automatically elected to fill the vacancy,” rendering a by-election unnecessary. Popular Democratic Party v. Barcelo, — P. R. R. —, — (1981). The court held further that if the party presents more than one candidate during the 60-day period, a by-election must be conducted in which only party-affiliated candidates may run but in which all qualified electors may vote. In the event no candidate is presented within the 60-day period, candidates affiliated with any party, as well as independent candidates, are permitted to run in the by-election. Because of the delay already occasioned by the litigation, the court permitted appellee Party only 30 days from the entry of judgment, May 8, 1981, to present a “slate” of candidates to the Commonwealth Election Commission. The court ordered that “[i]f said slate is limited to only one candidate, he shall be certified by the General Administrator of Elections as the person entitled to hold the vacant seat.” Id., at-. The court rejected appellants’ contention that this procedure violated the United States Constitution. It noted that the Constitution does not expressly require a fixed method for filling vacancies in a state or commonwealth legislature. The court also held that Puerto Rico’s party appointment system serves several “compelling interests,” such as ensuring the stability and continuity of the “legislative balance” until the next general election; protecting the “electoral mandate” of the previous election; and reducing “inter-partisan political campaigns to once every four years.” Id., at-. II Puerto Rico, in common with many of the States, has adopted means of filling interim vacancies in elective commonwealth offices without the necessity of a full-scale special election. If a vacancy occurs in the office of Governor, it is automatically filled by the Secretary of State, an officer appointed by the Governor. P. E. Const., Art. IV, §7. Mayoral vacancies and vacancies in the municipal assemblies are filled by appointment upon the recommendation of the political party to which the incumbent belonged. P. R. Laws Ann., Tit. 21, §§ 1161, 1259 (1974). Similarly, the Commonwealth Constitution provides that vacancies in the posts of at-large senators and representatives, see n. 13, infra, shall be filled “upon recommendation of the political party to which belonged the Senator or Representative causing the vacancy . . . .” Art. Ill, §8. Article 5.006 of the Puerto Rico Electoral Law, as interpreted by the Supreme Court of Puerto Rico in this case, likewise confers on a political party the initial opportunity to appoint an interim replacement for one of its members who vacates a position as a district senator or representative. In each case, the appointee serves only until the next regularly scheduled election. Appellants’ challenge to the procedure mandated by Article 5.006 is essentially two-pronged. Appellants first contend that qualified voters have a federal constitutional right to elect their representatives to the Puerto Rico Legislature, and that vacancies in legislative offices therefore must be filled by a special election open to all qualified electors, not by interim appointment of any kind. Alternatively, appellants maintain that even if legislative vacancies may be filled by an interim appointment of the Governor or some other elected official, Puerto Rico’s party appointment mechanism imper-missibly infringes upon their right of association under the First Amendment and denies them equal protection of the laws. A It is not disputed that the fundamental protections of the United States Constitution extend to the inhabitants of Puerto Rico. See Torres v. Puerto Rico, 442 U. S. 465, 469-470 (1979). Cf. Dorr v. United States, 195 U. S. 138, 148 (1904). In particular, we have held that Puerto Rico is subject to the constitutional guarantees of due process and equal protection of the laws. Examining Board v. Flores de Otero, 426 U. S. 572, 599-601 (1976); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974). We thus think it is clear that the voting rights of Puerto Rico citizens are constitutionally protected to the same extent as those of all other citizens of the United States. At the same time, Puerto Rico, like a state, is an autonomous political entity, “ ‘sovereign over matters not ruled by the Constitution.’” Calero-Toledo, supra, at 673 (quoting Mora v. Mejias, 115 F. Supp. 610 (PR 1953)). See Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank, 649 F. 2d 36, 39-42 (CA1 1981). The methods by which the people of Puerto Rico and their representatives have chosen to structure the Commonwealth’s electoral system are entitled to substantial deference. Moreover, we should accord weight to the Puerto Rico Supreme Court’s assessment of the justification and need for particular provisions to fill vacancies caused by the death, resignation, or removal of a member of the legislature. Bearing these considerations in mind, we turn to appellants’ constitutional challenges. B No provision of the Federal Constitution expressly mandates the procedures that a state or the Commonwealth of Puerto Rico must follow in filling vacancies in its own legislature. Cf. U. S. Const., Art. I, §2; Arndt. 17, cl. 2. Appellants nevertheless maintain that qualified electors have an absolute constitutional right to vote for the members of a state or commonwealth legislature, even when a special election is required for this purpose. However, this Court has often noted that the Constitution “does not confer the right of suffrage upon any one,” Minor v. Happersett, 21 Wall. 162, 178 (1875), and that “the right to vote, per se, is not a constitutionally protected right,” San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35, n. 78 (1973). See McPherson v. Blacker, 146 U. S. 1, 38-39 (1892). Moreover, we have previously rejected claims that the Constitution compels a fixed method of choosing state or local officers or representatives. For example, in Fortson v. Morris, 385 U. S. 231, 234 (1966), Justice Black, speaking for the Court, stated: “There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select its Governor.” In Fortson, the Court sustained a Georgia constitutional provision empowering the state legislature to elect a Governor from the two candidates receiving the highest number of votes cast in the general election, in the event neither received a majority. Similarly, in Sailors v. Board of Education, 387 U. S. 105 (1967), the Court upheld a statute authorizing appointment rather than election of the members of a county school board. To be sure, when a state or the Commonwealth of Puerto Rico has provided that its representatives be elected, “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U. S. 330, 336 (1972). See Kramer v. Union Free School District, 395 U. S. 621, 626-629 (1969); Gray v. Sanders, 372 U. S. 368, 379-380 (1963). However, the Puerto Rico statute at issue here does not restrict access to the electoral process or afford unequal treatment to different classes of voters or political parties. All qualified voters have an equal opportunity to select a district representative in the general election; and the interim appointment provision applies uniformly to all legislative vacancies, whenever they arise. In Valenti v. Rockefeller, 393 U. S. 405 (1969), the Court sustained the authority of the Governor of New York to fill a vacancy in the United States Senate by appointment pending the next regularly scheduled congressional election — in that case, a period of over 29 months. Thus, although most Members of the United States Senate hold office by virtue of popular election, some Members, at any given time, may hold office by virtue of an interim appointment. The Court found nothing invidious or arbitrary in this distinction in Valenti, nor do we here. As the three-judge District Court observed in Valenti: “In this case we are confronted with no fundamental imperfection in the functioning of democracy. No political party or portion of the state’s citizens can claim it is permanently disadvantaged ... or that it lacks effective means of securing legislative reform if the statute is regarded as unsatisfactory. We have, rather, only the unusual, temporary, and unfortunate combination of a tragic event and a reasonable statutory scheme.” Valenti v. Rockefeller, 292 F. Supp. 851, 867 (SDNY 1968). Valenti, of course, unlike this case, involved an interpretation of the Seventeenth Amendment, which explicitly outlines the procedures for filling vacancies in the United States Senate. See n. 7, supra. However, the fact that the Seventeenth Amendment permits a state, if it chooses, to forgo a special election in favor of a temporary appointment to the United States Senate suggests that a state is not constitutionally prohibited from exercising similar latitude with regard to vacancies in its own legislature. We discern nothing in the Federal Constitution that imposes greater constraints on the Commonwealth of Puerto Rico. The Commonwealth’s choice to fill legislative vacancies by-appointment rather than by a full-scale special election may have some effect on the right of its citizens to elect the members of the Puerto Rico Legislature; however, the effect is minimal, and like that in Valenti, it does not fall disproportionately on any discrete group of voters, candidates, or political parties. See n. 10, supra. Moreover, the interim appointment system plainly serves the legitimate purpose of ensuring that vacancies are filled promptly, without the necessity of the expense and inconvenience of a special election. The Constitution does not preclude this practical and widely accepted means of addressing an infrequent problem. C Puerto Rico’s appointment mechanism is not rendered constitutionally defective by virtue of the fact that the interim appointment power is given to the political party with which the previous incumbent was affiliated. Appellants maintain that the power to make interim appointments must be vested in an elected official, such as the Governor of the Commonwealth, so that the appointments will have “the legitimacy of derivative voter approval and control.” Reply Brief for Appellants 15. However, that such control may often be largely illusory is illustrated by this case, where the Governor and the incumbent belonged to different parties. The Puerto Rico Legislature could reasonably conclude that appointment by the previous incumbent’s political party would more fairly reflect the will of the voters than appointment by the Governor or some other elected official. The Supreme Court of Puerto Rico held that party appointment was a legitimate mechanism serving to protect the mandate of the preceding election and to preserve the “legislative balance” until the next general election is held. Such protection is particularly important in light of Puerto Rico’s special interest in ensuring minority representation in its legislature. See Garcia v. Barcelo, 671 F. 2d 1, 6-7 (CA1 1982). It was thus not unreasonable for the Puerto Rico Legislature, in establishing an appointment systemior filling legislative vacancies, to make provision for continuity of party representation. Cf. Kaelin v. Warden, 334 F. Supp. 602, 607-608 (ED Pa. 1971) (three-judge District Court). Absent some clear constitutional limitation, Puerto Rico is free to structure its political system to meet its “special concerns and political circumstances,” Garcia, supra, at 7. Finally, appellants argue that their rights of association and equal protection of the laws were violated by their exclusion, based solely upon their party affiliation, from the Party-sponsored election held to select Muniz' successor, see n. 3, supra. Cf. Branti v. Finkel, 445 U. S. 507 (1980). However, appellants' argument misconceives the nature of the election held in this case. Puerto Rico law authorized the Popular Democratic Party to designate an interim replacement to fill Muniz’ seat. The Party was entitled to adopt its own procedures to select this replacement; it was not required to include nonmembers in what can be analogized to a party primary election. Cf. Democratic Party of U. S. v. Wisconsin, 450 U. S. 107 (1981); Cousins v. Wigoda, 419 U. S. 477 (1975). Appellants’ exclusion from this election did not violate their rights of association, nor did it deprive them of equal protection of the laws. hH H We hold that the mechanism adopted by the Puerto Rico Legislature for filling legislative vacancies is not foreclosed by the Federal Constitution. Accordingly, the judgment of the Supreme Court of Puerto Rico is Affirmed. The Puerto Rico Legislative Assembly consists of two chambers — the House of Representatives, with 51 members, and the Senate, with 27 members. P. R. Const., Art. Ill, §§ 1 and 2. A single general election is held in Puerto Rico every four years for all elective officials. Art. VI, § 4; P. R. Laws Ann., Tit. 16, §§3201, 3205 (Supp. 1980). Article 5.006 provides, in pertinent part: “When a vacancy occurs in the office of a senator or representative elected as an independent candidate for a district, or when a vacancy occurs in the office of a senator or representative for a district, nominated by a party before the fifteen (15) months immediately preceding the date of the following general election, the Governor, with the advice of the [Commonwealth Election] Commission shall, within the thirty (30) days following the date on which the vacancy occurred, call a by-election in such district which shall be held no later than ninety (90) days after the date of the call, and the person elected in such by-election shall hold the office until the term of his predecessor has expired. “If within sixty (60) days following the date such vacancy arises, the party to which the legislator of the vacant office belonged has not presented a candidate to fill such office, the office shall be deemed to be that of an independent legislator, to the effects of holding the by-election to fill it.” Article 5.007 provides: “All electors entitled to vote within the geographic district in which the by-election is to be held, pursuant to the call issued by the Governor to such effect, shall vote in a by-election.” On March 22, 1981, while the case was pending before the Supreme Court of Puerto Rico, the Popular Democratic Party held a primary election in which only its members were permitted to participate. From a field of four candidates, the Party’s members selected Juan Corujo Collazo. Pursuant to the Supreme Court’s mandate, Corujo Collazo’s name was presented to the Election Commission, and on July 6,1981, he was sworn in as the new Representative from District 31. In 22 States, legislative vacancies are filled by appointment, with the appointee serving either until the next general election or until expiration of the term of the previous incumbent. Alaska Stat. Ann. § 15.40.320 et seq. (1975) (unless term expires or election held before next legislative session convenes); Colo. Rev. Stat. §1-12-103 (1980); Haw. Rev. Stat. §§ 17-3,17-4 (1976 and Supp. 1981); Idaho Code § 59-904A (1976); Ill. Rev. Stat., ch. 46, ¶25-6 (1980); Ind. Code §2-2.1-2-1 el seq. (Cum. Supp. 1981); Kan. Stat. Ann. §25-312 (1981); Md. Const., Art. Ill, §13; Mont. Code Ann. § 5-2-401 et seq. (1981); Neb. Rev. Stat. § 32-1042(3) (1978); Nev. Const., Art. IV, § 12 (unless biennial or regular election held between time of vacancy and next legislative session); N. M. Stat. Ann. §§2-7-9B, 2-8-9B (1978); N. C. Gen. Stat. § 163-11 (Cum. Supp. 1981); Ohio Const., Art. II, § 11; Ore. Rev. Stat. §§ 171.051, 171.060 (1981) (unless the legislature is not in session; a general election will be held within 90 days; and no special session of the legislature will be convened before such election); S. D. Const., Art. Ill, § 10; Tenn. Code Ann. §2-14-201 et seq. (1979) (if less than 12 months remain before next general election); Utah Code Ann. §20-1-5 (Supp. 1981); Vt. Stat. Ann., Tit. 17, §2623 (Supp. 1981); Wash. Const., Amdt. 52, Art. 2, §15; W. Va. Code §3-10-5 (1979); Wyo. Stat. §§ 22-18-lll(a)(ii), (iii) (1977). Like Puerto Rico, five of these States— Colorado, Illinois, Indiana, Maryland, and North Carolina — confer the appointment power on the political party to which the previous incumbent belonged. Nine more States — Alaska, Idaho, Montana, Ohio, Oregon, Utah, Washington, West Virginia, and Wyoming — require that the appointee be selected from a list submitted by the political party, or that the appointee be chosen or confirmed by elected officials affiliated with the party. Another two States — Hawaii and Nevada — simply require that the appointee be a member of the party to which his or her predecessor belonged. The current procedure for filling legislative vacancies is similar to that prescribed by a 1938 amendment to Puerto Rico’s Organic Act, which remained in effect until Puerto Rico assumed Commonwealth status in 1952. In the 1938 amendment, Congress mandated that vacancies in the Puerto Rico Legislature be filled by the Governor “upon the recommendation of the central committee of the political party of which such senator or representative was a member.” Act of June 1, 1938, ch. 308, § 30, 52 Stat. 595. Title 48 U. S. C. §§ 891, 892 presently provide that vacancies in the elective office of Resident Commissioner to the United States are to be filled by appointment of the Governor with the advice and consent of the Puerto Rico Senate. We have never found it necessary to resolve the precise question whether the guarantee of equal protection is provided to Puerto Ricans under the Equal Protection Clause of the Fourteenth Amendment or the Due Process Clause of the Fifth Amendment. See Examining Board v. Flores de Otero, 426 U. S., at 601. With regard to Members of the United States House of Representatives, Art. I, § 2, cl. 4, provides: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” The Seventeenth Amendment provides: “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The source of this purported right is somewhat unclear. Appellants contend that Art. I, § 2, cl. 1, of the Constitution — which provides that those eligible to vote for Members of the United States House of Representatives “shall have the Qualifications requisite for the Electors of the most numerous Branch of the State Legislature” — contemplates that state legislators will be popularly elected. See also U. S. Const., Arndt. 17. Moreover, appellants contend that a popularly elected legislature is an essential element of a “Republican Form of Government,” U. S. Const., Art. IV, § 4. See 48 U. S. C. § 731c, requiring Puerto Rico to provide a republican form of government. However, this seems largely irrelevant, since Puerto Rico has in fact established a legislature “whose members shall be elected by direct vote at each general election,” P. R. Const., Art. Ill, § 1. See also Art. II, §2, guaranteeing “equal, direct, and . . . universal suffrage . . . .” In Sailors, we expressly left open the question “whether a State may constitute a local legislative body through the appointive rather than the elective process.” 387 U. S., at 109-110 (emphasis added). However, we need not consider whether, as urged by appellants, a state or the Commonwealth of Puerto Rico is constitutionally barred from abolishing its elected legislative branch of government; that question is not presented. See n. 8, supra. Appellants contend that Article 5.006 “discriminates” between voters in districts in which a vacancy occurs and those in which the elected representative or senator serves out his term, because only the former are denied the opportunity to be represented by an elected legislator. Obviously, a statute designed to deal with the occasional problem of legislative vacancies will affect only those districts in which vacancies actually arise. However, such a statute is not for this reason rendered invalid under equal protection principles. A vacancy in the legislature is an unexpected, unpredictable event, and a statute providing that all such vacancies be filled by appointment does not have a special impact on any discrete group of voters or candidates. Cf. Bullock v. Carter, 405 U. S. 134 (1972); Williams v. Rhodes, 393 U. S. 23 (1968). Appellants’ equal protection argument adds nothing to their basic assertion of an absolute constitutional right to elect representatives to a state or commonwealth legislature. In Valenti, the vacancy was created by the death of Senator Robert F. Kennedy on June 6, 1968. Under New York law, since the vacancy arose less than 60 days prior to New York’s regular spring primary in an even-numbered year, an election to fill the vacancy would not be held until the general election in the next even-numbered year, i. e., November 1970. The Governor was empowered to make an interim appointment, effective until December 1, 1970. See Valenti v. Rockefeller, 292 F. Supp. 851, 853 (SDNY 1968) (three-judge District Court). See Garcia v. Barcelo, 671 F. 2d 1, 6 (CA1 1982): “One might argue, as a matter of form, that appointment by a governor is indeed more ‘democratic’ because the governor is himself elected. Yet in practice this is not likely to be so when the governor and former representative are of different parties. In that case the party difference is likely to produce successors of different parties. In such circumstances, we see how the framers of a state constitution might conclude that party selection is more likely to reflect the will of the voters than selection by the governor, for it was the former representative’s party, not that of the governor, that won the prior seat. Such a judgment, reflecting a knowledge of political practice, seems perfectly consistent with the basic democratic role of the modem political party — translating the individual wills of myriad voters into a practically achievable program administered by a government that can be held responsible for its performance at the polls.” Two devices in Puerto Rico’s Constitution ensure representation of minority parties in the Puerto Rico Legislative Assembly. First, 11 of 27 senators and 11 of 51 representatives are elected "at-large,” and each voter may vote for only one candidate for senator or representative at-large. Art. Ill, § 3. Second, if any one party elects more than two-thirds of the members of either house of the legislature, the number of members in that house is increased by declaring elected a sufficient number of minority-party candidates to bring the total number of minority-party members to 9 in the Senate and to 17 in the House. Art. Ill, § 7. Appellees maintain that “the Commonwealth’s unique guarantee of minority party representation ... is and has been particularly important in Puerto Rico, far beyond its importance in any State of the Union, in order to provide a democratic forum and an outlet for the radically different views of the various political parties as to the ultimate status of Puerto Rico . . . .” Brief for Appellees 14. Puerto Rico is in no sense unique in maintaining continuity of party representation between elections; 16 States have chosen to require that legislative vacancies be filled by appointment of a person affiliated with the same party as the previous incumbent, or by designation of that party, see n. 4, supra. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re SLF NEWS DISTRIBUTORS, INC., Bankrupt. Abraham DAVIS, Trustee, Appellee, v. COOK CONSTRUCTION CO., Appellant. James M. Cook Construction Co., Allan Molasky. No. 80-1652. United States Court of Appeals, Eighth Circuit. Submitted April 15, 1981. Decided May 28, 1981. Martin Schiff, Jr., Webster Groves, Mo., for appellant. Leslie A. Davis, Clayton, Mo., for appellee. Before BRIGHT, HENLEY and ARNOLD, Circuit Judges. BRIGHT, Circuit Judge. Abraham Davis, the trustee in bankruptcy for SLF News Distributors, Inc. (SLF or the bankrupt), brought this action under section 67(d)(2Xa) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(a) (1976) (repealed 1978), to set aside as fraudulent a $10,000 transfer made by SLF to James M. Cook Construction Company (Cook). The bankruptcy court entered judgment against Cook and the district court affirmed, 5 B.R. 813. Cook now appeals from the judgment of the district court, contending that (1) the trustee’s complaint fails to state a cause of action; (2) the bankrupt made no “transfer” of funds to Cook within the meaning of section 67(d)(2Xa) of the Bankruptcy Act; (3) Cook should be considered a bona fide purchaser under section 67(d)(6) of the Bankruptcy Act. We hold that under the circumstances of this case, Cook qualifies as a bona fide purchaser and, as such, is entitled to retain the transferred funds. Accordingly, we reverse the district court. 1. Background. On June 18, 1976, Cook entered into a written contract with Allan Molasky, individually and as trustee for MAM Partnership (MAM), to provide labor and materials for the building of the Lettuce Leaf Restaurant located on real estate owned by Molasky and MAM. Cook completed its obligations under the contract; Molasky, however, failed to pay $14,000 owing on the contract. On November 2, 1976, Cook served notice on Molasky of its intent to file a mechanic’s lien pursuant to Missouri law, Mo.Rev.Stat. § 429.080 (1978). After negotiations, Cook agreed not to file its lien if Molasky immediately remitted $10,000. On November 4,1976, SLF drew its check on the First National Bank of Clayton in the amount of $10,000 in exchange for a $10,000 cashier’s check payable to Cook Construction Company. That same day a representative of MAM delivered the cashier’s check to Cook’s attorney. The check designated MAM Partnership as “Remitter.” Thereafter, Cook directed its attorney not to file a mechanic’s lien statement. At the time of these transactions SLF was insolvent. Neither Cook nor its attorneys knew that SLF had furnished the funds for the bank cashier’s check. Cook believed that Allan Molasky, personally or as trustee for the MAM Partnership, had provided the funds in question. Cook first learned that SLF had initiated the $10,000 transfer during March of 1978, a short time before the trustee filed the complaint in this proceeding. Bankruptcy proceedings against SLF were commenced on November 10, 1976, by the filing of an involuntary petition. In 1978, the trustee filed a complaint against Cook for return of the $10,000, alleging that the payment to Cook constituted a fraudulent transfer under provisions 67(dX2)(a)-(c) of the Bankruptcy Act, 11 U.S.C. § 107(dX2)(a)-(c) (1976) (repealed 1978). Cook denied liability and alleged as a defense that it received payment of the $10,-000 as a bona fide purchaser, asserting that it gave fair consideration by waiving its right to file a mechanic’s lien. The bankruptcy judge held that SLF made a fraudulent transfer to Cook under section 67(d)(2)(a) of the Act and rejected Cook’s bona fide purchaser defense. Accordingly, it entered judgment for $10,000 in favor of the trustee. Cook appealed to the district judge, who affirmed the bankruptcy court. Cook now appeals. For reasons stated below, we reverse. II. Discussion. Section 67(d)(2)(a) of the Bankruptcy Act provides: (2) Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer or obligation, if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent[.] [11 U.S.C. § 107(d)(2)(a) (1976) (repealed 1978).] The stipulated evidence establishes all the required elements of a fraudulent conveyance. SLF, while insolvent, made a $10,000 transfer within a year prior to bankruptcy without receiving “fair consideration.” As recognized by the bankruptcy judge and the district court, transfers to pay another’s debt are not made for “fair consideration.” See 4 Collier on Bankruptcy K 67.33, at 514.1 and cases cited at n.33 (14th ed. 1975). That the transfer by SLF was fraudulent, however, does not necessarily entitle the trustee to a judgment against Cook. Section 67(d)(6) provides in pertinent part: (6) A transfer made or an obligation incurred by a debtor adjudged a bankrupt under this title, which is fraudulent under this subdivision against creditors of such debtor having claims provable under this title, shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value[.] [11 U.S.C. § 107(d)(6) (1976) (repealed 1978).] The crucial question presented on this appeal is whether Cook, by releasing its mechanic’s lien rights on receipt of the $10,000 check, should be deemed “a bona fide purchaser, lienor, or obligee for a present fair equivalent value.” Cook contends that it acted as a bona fide purchaser of the check because it released its lien claim for $14,000 in the honest belief that its debtor, MAM, provided the funds for the cashier’s check. The bankruptcy court and district court rejected this contention because the bankrupt owed no debt to MAM or Allan Molasky and thus the absence of consideration moving to the bankrupt from Cook barred Cook from qualifying as a bona fide purchaser. The district court deemed immaterial Cook’s lack of notice or knowledge of the bankrupt’s involvement in the transfer. We conclude that the district court’s analysis does not properly take into account the special circumstances present in this case. SLF transferred $10,000 to the First National Bank of Clayton. The bank transferred these funds to Cook through a cashier’s check which indicated MAM as remitter. MAM, in turn, delivered the check to Cook. As previously noted, Cook did not know or receive notice that these funds emanated from anyone else than its debtor. Although the funds originated with the bankrupt, the instrument of transfer passed to Cook from a source other than the bankrupt. Thus Cook’s situation was akin to that of a subgrantee of property from the original transferor, SLF. Under section 67(d)(6) of the Bankruptcy Act, a good-faith subgrantee for a present fair equivalent value is entitled to retain its acquisition against the claim of the original grantor’s trustee in bankruptcy. 4 Collier on Bankruptcy f 67.41[6], at 603 and cases cited at n.72 (14th ed. 1975). Cook gave “fair equivalent value” by releasing a lien claim of $14,000 to its transferor-debtor, MAM, upon receipt of a $10,-000 cashier’s check from MAM. Because Cook had no notice or knowledge of the source of the funds or the trustee’s claim against them, Cook must be presumed to have acted in good faith. See 4 Collier on Bankruptcy f 67.41[4] at 589-91 (14th ed. 1975). In fact, Cook’s position, based on its lack of knowledge or notice, is superior to that of a bona fide subgrantee of property, who might well know the chain of title. See, e. g., May v. Moss, 194 F.2d 133 (8th Cir.), cert. denied, 343 U.S. 952, 72 S.Ct. 1046, 96 L.Ed. 1353 (1952); Morrison v. Bay Parkway Nat. Bank, 60 F.2d 41 (2d Cir.), appeal dismissed per stipulation, 296 U.S. 669, 57 S.Ct. 756 (1932); Levy v. Bukes, 65 F.Supp. 494 (W.D.Pa.1946). Thus, we conclude that the protection afforded by section 67(d)(6) to a bona fide subgrantee of property for present fair equivalent value should apply to a purchaser in the posture of Cook. We note that the particular facts of this case apparently make it one of first impression. At least, the parties have cited no cases in which a transferee, like Cook, received funds from the bankrupt but gave present fair equivalent value to a third, party in the honest belief that this third party furnished the funds in question. We conclude that, under the present circumstances, Cook should be granted bona fide purchaser status under section 67(d)(6) of the Bankruptcy Act. Accordingly, we reverse and remand with directions to enter a judgment of dismissal of the trustee’s complaint against Cook. . The parties have stipulated to the factual background of this case. . SLF’s check to the bank bears the signatures of Mark Molasky and Ronald Hulse. The record does not indicate whether Mark Molasky of SLF and Allan Molasky of MAM are related or whether SLF received any consideration from MAM for this transaction. . Section 1(30) defines “transfer” to include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security, or otherwise; the retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor[.] [11 U.S.C. § 1(30) (1976) (repealed 1978) (emphasis supplied).] . Section 67(d)(1)(e) states: [Consideration given for the property or obligation of a debtor is “fair” (1) when, in good faith, in exchange and as a fair equivalent therefor, property is transferred or an antecedent debt is satisfied, or (2) when such property or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared with the value of the property or obligation obtained. [11 U.S.C. § 107(d)(1)(e) (1976) (repealed 1978).] . The court relied upon the following comment from Collier on Bankruptcy. If the two conditions are present, viz., lack of fair consideration and insolvency or resulting insolvency, there is a conclusive presumption of fraud, any intent to the contrary notwithstanding. [4 Collier on Bankruptcy 67.34, at 518-19 (14th ed. 1975) (footnote omitted).] . The district court determined that the transfer of funds actually occurred between SLF and the recipient; that no intermediate transfer to the partnership occurred or was intended; and that the legend of MAM as “Remitter” on the cashier’s check bore only on the issue of Cook’s notice or knowledge of the transaction — a matter deemed immaterial by the district court. On appeal Cook does not question the court’s finding that the transfer of funds occurred directly between SLF and Cook. . The four-month statute of limitation under the Missouri statute, Mo.Rev.Stat. § 429.080 (1978), precludes Cook from now acquiring a lien on MAM’s property. . The cases cited by the bankruptcy judge are inapposite. See In Re O’Bannon, 484 F.2d 864 (10th Cir. 1973); In Re B-F Building Corp., 312 F.2d 691 (6th Cir. 1963); Edward Hines Western Pine Co. v. First Nat. Bank of Chicago, 61 F.2d 503 (7th Cir. 1932); Davis v. Hudson Trust Co., 28 F.2d 740 (3d Cir. 1928), cert. denied, 278 U.S. 655, 49 S.Ct. 179, 73 L.Ed. 565 (1929). In these cases, either the consideration moving from the transferee was inadequate or the transferee knew of the bankrupt’s involvement in the transfer. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America, Plaintiff-Appellee, v. Richard S. BERRY, Defendant-Appellant. No. 79-1698. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 12, 1980. Decided Sept. 8, 1980. David M. Ochoa, Phoenix, Ariz., for defendant-appellant. Dale A. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee; Stephen M. Dichter, Asst. U. S. Atty., Phoenix, Ariz., on brief. Before WRIGHT, CHOY and ALARCON, Circuit Judges. WRIGHT, Circuit Judge: The court’s opinion filed on July 7,1980 is withdrawn and the following Amended Opinion is substituted. Berry argues that his conviction for conspiracy to commit fraud should be reversed because (1) the Arizona District’s jury selection system improperly excluded Indians and (2) the cumulative effect of several errors and instances of prosecutorial misconduct prejudiced him and foreclosed his right to a fair trial. We reject both arguments and affirm the conviction. Berry was indicted for offenses related to perjury and the obstruction of justice by a grand jury selected from the combined Phoenix and Prescott divisions of the District of Arizona. Under the jury selection system then in operation, prospective jurors in each division living more than 100 miles from the division courthouse could exempt themselves from consideration for service. Berry attempted to show that this exemption caused an unconstitutional underrepresentation of Indians. The government challenged his statistical evidence as stale and inaccurate. At his trial, Barnes and Herzberg testified against Berry. Each had been convicted of offenses related to a fraud scheme but, in exchange for their cooperation, the prosecutor informed the parole commission of their cooperation. They testified that Berry advocated their hiding of evidence and lying to the SEC. They were virtually the government’s only witnesses. Berry offered eight witnesses, each of whom testified that the two were untrustworthy. During a recess, the jury foreman read the first few lines of a newspaper story from which he learned that Berry had been disbarred. The foreman was questioned in chambers where he declared that he could still be fair. The court denied the defendant’s motion for a mistrial. In closing argument, the prosecutor declared that the government had separated Barnes and Herzberg so they could not compare their stories. He argued that this made their testimony credible. In rebuttal argument, the prosecutor responded to defense counsel’s attack on Barnes’ credibility by blaming Berry for his criminal conduct. He argued that if Berry had not hidden evidence Barnes would have been incarcerated sooner and could not have committed several crimes. The jury found Berry guilty of conspiracy but not guilty of subornation of perjury or obstruction of justice. On appeal, he argues that his indictment was invalid because the grand jury was selected from a pool in which Indians were unconstitutionally underrepresented and contends that he was prejudiced by the immediate and cumulative effect of various errors and instances of prosecutorial misconduct. CONSTITUTIONALITY OF THE JURY POOL: Berry’s timely motion to dismiss his indictment on the ground that Indians were unconstitutionally excluded by the jury selection system was denied. We review under the test established in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979): In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The first element is well satisfied. United States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). Berry attempts to establish the second element statistically. He offers figures purporting to show that, although 4.27% of the population in the combined Phoenix and Prescott divisions are Indians, they comprise only 1.15% of the venire. He seeks to prove the third element, that the jury selection system causes the exclusion of Indians, by linking their alleged underrepresentation to the 100-mile exemption. The Duren test combines a fourth element, however, which is fatal to Berry’s argument. The Court declared: Finally, in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process. Id. at 366, 99 S.Ct. at 669 (emphasis added). Berry’s jury was selected from jury wheels filled on January 15, 1977. His statistics purport to show that Indians were underrepresented on jury wheels filled during the following two years. He failed to introduce any evidence showing underrepresentation on his venire. PREJUDICIAL ERROR AND PROSECU-TORIAL MISCONDUCT: Berry objects to several alleged errors and instances of prosecutorial misconduct. He argues that he was prejudiced by them separately and cumulatively. Our discussion of his argument follows the three-step analysis outlined in United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). We address these questions: (1) Did any error or prosecutorial misconduct occur? (2) Were the issues preserved for appeal? (3) Was the defendant prejudiced? If all are answered affirmatively, we must reverse. We will discuss each alleged error and instance of misconduct under the three-step analysis and then address their cumulative effect. NEWSPAPER INCIDENT: During the course of the trial, the jury foreman informed the court that he had inadvertently read the first few lines of a newspaper article which described Berry as a disbarred attorney. Later in the article, the cause of disbarment was revealed. Evidence of the disbarment had been ruled inadmissible. Berry argues that the district court failed to make an adequate investigation of the incident and should have declared a mistrial. THE TRIAL COURT’S INVESTIGATION: With all counsel present, the judge questioned the foreman in chambers. He asked whether the juror continued to read the article after he realized it concerned Berry and whether he read anything which might influence him. He responded negatively to both questions. The judge asked the other jurors in open court whether they had read the article. They indicated they had not. Berry insists the judge should have asked the foreman precisely what he remembered from the article and should have questioned each of the other jurors individually in chambers. The decision to conduct a hearing into alleged jury misconduct and to determine its extent and nature is discretionary. United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We find no abuse of discretion. The judge’s response was commendable. He questioned the jurors enough to satisfy himself that no significant bias had been caused but refused to conduct such an inquisition that the jurors might conclude that Berry had been involved in other criminal activity. DENIAL OF MISTRIAL MOTION: Berry argues that the judge erred in refusing to grant a mistrial. A mistrial was required if “the misconduct [prejudiced] the defendant to the extent he [did] not receive a fair trial,” United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); United States v. Hendrix, supra, 549 F.2d at 1229. The conscientious foreman volunteered that he had read the opening lines of the article. In response to the court’s questions, he declared that he stopped reading when he realized Berry was mentioned and that he would not be influenced by it. The foreman learned only that Berry was a disbarred attorney. This information may not have impressed him favorably, but we conclude it was not so prejudicial as to deny Berry a fair trial. Id. Whether this incident contributed to a cumulative prejudicial effect we shall consider later in this opinion. ADMITTING EVIDENCE OF OTHER MISCONDUCT: On the first day of trial, the court let the prosecutor develop evidence concerning Berry’s relationship with Barnes and Herzberg but prohibited detailed inquiries about misconduct not covered by the indictment. On the next day, over Berry’s objection, the prosecutor elicited testimony from Barnes that Berry warned him against cooperation with the government: [he told me,] however, be careful as to what areas that I touch on, so that I didn’t harm either he or several business deals that he and I were involved in together. The prosecutor pursued this line until the court sua sponte ruled the evidence inadmissible and cautioned the jury: conversations alluded to by the witness that occurred at the County Jail with the defendant, the Court has decided that those conversations are not material, or not relevant to the charges before this Court. The jury is therefore instructed to disregard that evidence. The Court strikes the same. A timely instruction from the judge usually cures the prejudicial impact of evidence unless it is highly prejudicial or the instruction is clearly inadequate. United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980); United States v. Carlos, 478 F.2d 377 (9th Cir. 1973) (giving jurors impression they may not perform traditional fact finding functions not easily cured). The jury could not have been significantly prejudiced by evidence that Berry engaged in “business deals” with Barnes. It conveyed at most a faint suggestion that Berry had participated in Barnes’ other illegal ventures. This improper suggestion was adequately cured by the judge’s instruction. IMPROPER CLOSING ARGUMENT: In closing argument, the prosecutor told the jury that the government had taken “great pains” to keep Barnes and Herzberg apart so the jury could trust them: The government, knowing that you people would like to get to the truth, kept them apart from each other, presented their testimony, each untainted by the other. The argument was improper because the prosecutor may not imply that the government has taken steps to assure the veracity of its witnesses. United States v. Roberts, 618 F.2d 530-536 (9th Cir. 1980). A jury may naturally doubt the testimony of witnesses who have agreed to cooperate in exchange for favors. The prosecutor may bolster their credibility with corroborating extrinsic evidence, but he may not indicate that the government has arranged for credible testimony. Two other cases have recently come to our attention in which prosecutors from Phoenix made improper arguments. We repeat for their benefit and for the benefit of others, the Supreme Court’s classic admonition: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1334 (1935). See also, United States v. Perez, 491 F.2d 167, 174 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974) (prosecutor should refrain from arguments diverting jury from their duty to decide case only on the evidence). We should not have to repeat these admonitions. PRESERVING THE ISSUE FOR APPEAL: Berry did not object to the prosecutor’s argument so we may reverse only if the misconduct constituted “plain error.” United States v. Rich, 580 F.2d 929, 936 (9th Cir.), cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 33 (1978). Under the plain error doctrine, this court has discretionary authority to grant review when the defendant failed to preserve an issue with a proper objection. United States v. Lopez, 575 F.2d 681, 685 (9th Cir. 1978). Applying the Plain Error Doctrine Before granting review under the plain error doctrine, we consider (1) whether the error or misconduct was serious and (2) whether the reasons for .requiring an objection apply. This court will not grant discretionary review unless the error of misconduct affected “substantial rights” of the defendant. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405, (1979); Fed.R.Crim.P. 52(b). The test for substantiality is similar to that for prejudicial error: Plain error is not determined in a vacuum. The prejudicial nature of unobjected-to error must be determined by reference to the whole case, [citation omitted] Particularly we should attempt to determine the impact of the error on the jurors’ deliberations. If the probability is high that the error materially affected their verdict, reversal may be justified. United States v. Segna, 555 F.2d 226, 231 (9th Cir. 1977). See also, United States v. Lopez, supra, 575 F.2d at 685 (9th Cir. 1978) (error may be sufficiently serious to prompt review, but not reversal). This court may also consider whether the reasons for requiring an objection apply. Objections caution the opposing party to prevent error and avoid misconduct and alert the court to take corrective action. See, Stone v. Morris, 546 F.2d 730, 736 (7th Cir. 1976) (civil case). The defendant may not allow error to go uncorrected and then ask this court to reverse his conviction. The need for an objection may be wholly or partially obviated in a variety of circumstances. For example, the error or misconduct may be so obvious that the trial court should have corrected it sua sponte. United States v. Lopez, supra, 575 F.2d at 685. Similarly, no objection is required when the prejudice cannot be corrected or when objection would exaggerate it. United States v. Young, 463 F.2d 934, 940 (D.C. Cir.1972); United States v. Freeman, 514 F.2d 1314, 1319 n.34 (D.C.Cir.1975), vacated on unrelated grounds, 598 F.2d 306 (D.C.Cir. 1979). This court does not apply the plain error doctrine rigidly. It will grant review whenever: reversal is necessary in order to prevent a clear miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Segna, supra, 555 F.2d at 231. In the interests of judicial economy, we require the defendant to assert his rights at trial but, in the interest of justice, we may reverse a conviction which is improperly obtained. The prosecutor’s misconduct here was not glaring and the prejudice, though not insignificant, is insufficient to persuade us to invoke the plain error doctrine. The misconduct was to imply that the government had manipulated its witnesses so the jury ought to believe them. This argument was only one of many used to bolster the credibility of Barnes and Herzberg, and we hold that it was not decisive in the jury’s decision to believe their testimony. REBUTTAL ARGUMENT: In rebuttal argument, the prosecutor responded to Berry’s attack on Barnes’ credibility by suggesting that Berry was responsible for several of the witness’s crimes. Berry had argued that Barnes’ convictions for fraud-related offenses showed he was untrustworthy. The prosecutor responded: [defense counsel] tells you about Barnes. Barnes was free in 1975, told all these things regarding sale of stock of people who died in Colorado. I submit to you, ladies and gentlemen, that the reason that Barnes was free in 1975 to do these things was because he was not awaiting trial. He was not in jail. He was not anything else, and the reason he wasn’t is because Herzberg and their lawyer, Dick Berry, kept him out of jail by keeping the S.E.C. stymied for a year. Had the records been produced by these witnesses with their attorney instead of being hidden away, they wouldn’t have been free to do the acts they did in 1975. This was irresponsible argument and counsel properly objected. The court sustained the objection and instructed: Members of the jury, it will be up to you to decide what the evidence in this case is and inferences therein. I will instruct you later regarding comments of attorneys. The next day, the court instructed the jurors that they were the sole judges of credibility, that they were to decide the case on the evidence, and that statements of counsel were not evidence. These instructions adequately cured the prejudice. The argument was patently foolish and the judge’s action reminded the jury of their duty. We will not assume they ignored his instructions. United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). MISSTATEMENT OF THE LAW: In closing argument, Berry insisted that Barnes and Herzberg had not told him of their fraudulent schemes. The prosecutor replied that the two had no reason to withhold the information from Berry because they believed communications with an attorney were privileged. Apparently the prosecutor also believed so because he declared: If Barnes had told defendant on or before March 19, 1974, that he had hidden the records and would not turn them over to the SEC, defendant cannot seriously suggest that he would have been able to reveal this confidence to the SEC in the absence of a waiver by his client. The attorney-client privilege does not protect communications made in furtherance of criminal activities. United States v. Hodge and Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977). A prosecutor should not misstate the law in closing argument. United States v. Artus, 591 F.2d 526, 528 (9th Cir. 1979). Berry did not object to this argument, however, and we do not consider the misconduct serious enough to constitute plain error. LAWYER STANDARD OF CONDUCT-. Berry argues that the prosecutor improperly invited the jury to use a stricter “lawyer” standard of conduct to judge him. We read the record differently. The prosecutor argued that Berry was not just a layman involved in a conspiracy but “a lawyer, the person who is sworn to uphold the law as a member of the bar.” The prosecutor was attempting to influence the jurors against Berry, but he was not arguing that a different standard of proof applied to him. Name calling is not an admirable style of argument and we do not condone it, but this court has been reluctant to find it cause for reversal. See U. S. v. Taxe, 540 F.2d 961 (9th Cir.), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1976). Berry did not object to this argument and we do not find it plain error. CUMULATIVE ERROR: In addressing Berry’s charge of cumulative prejudicial error, we consider all errors and instances of prosecutorial misconduct which were preserved for appeal with a proper objection or which were plain error. We will also consider errors and instances of misconduct which we earlier held were adequately cured by the court’s instruction. We recognize that a trace of prejudice may remain even after a proper instruction is given. If we find a residue of prejudice, we will take it into account. We will not consider actions which we held to be not error misconduct or which we decided not to review as plain error. THE HIBLER “DOCTRINE”: This court has declared that it will be especially sensitive to allegations of prejudice when the government’s case rests on uncorroborated accomplice testimony. United States v. Hibler, 463 F.2d 455 (9th Cir. 1972). The Hibler “doctrine” may be restated more generally: the defendant is more likely to be prejudiced by error or misconduct when the government has a weak case. This is simply the logical corollary of the harmless error doctrine which requires us to affirm a conviction if there is overwhelming evidence of guilt. See, United States v. Potter, 616 F.2d 384, 393-94 (9th Cir. 1979). The government’s case against Berry rested on the virtually uncorroborated testimony of Barnes and Herzberg. It was a weak case in which the credibility of the prosecution witnesses was a critical element. Berry charges non-constitutional error, so we will affirm if the error is more probably harmless than not. United States v. Valle-Valdez, 554 F.2d 911, 915 (9th Cir. 1977). In evaluating this impact, we must keep the Hibler “doctrine” in mind. PREJUDICE: We consider the cumulative prejudicial impact of the following: (1) evidence of Berry’s “business deals” with Barnes, (2) the jury foreman’s knowledge that Berry was a disbarred attorney, and (3) the prosecutor’s argument that Berry was responsible for several of Barnes’ illegal ventures. Irrelevant evidence of Berry’s “business deals” with Barnes was admitted and stricken, and the jury was instructed to disregard it. We conclude this left no residual prejudicial effect. The evidence was relatively benign and a proper instruction was quickly given. The fact that Berry’s foreman knew he was a disbarred attorney may have prejudiced him slightly, but the foreman was a conscientious juror whose desire to be fair is demonstrated by the fact that he brought his conduct to the court’s attention. He stated catergorically that he could set aside what he read and render a verdict solely on the evidence. We conclude that any prejudice to Berry was minimal. The prosecutor’s attempt to blame Berry for Barnes’ illegal ventures was prejudicial, but we do not believe it was so prejudicial that it convinced the jury Berry was guilty. It was inexcusable mud-slinging, but it did not relate to any element of the government’s case nor could it have significantly resuscitated Barnes’ credibility with the jury. We hold that there was no cumulative prejudice and affirm the conviction. . Barnes served two years of a 20-year sentence and Herzberg served about two and one-half years of a 15-year sentence. . The government argues that Berry’s statistics cannot be used because he failed to submit affidavits from those who compiled them. Berry has now moved to make the affidavits part of the record on appeal. Even were we to grant his motion, we would affirm the trial court’s ruling. . The government insists that this argument simply refuted a charge of collusion. But the statements went further, indicating that the government had taken an active role, manufacturing a situation in which collusion was impossible and, that the witnesses remained untainted for the jury. . United States v. Roberts, 618 F.2d 530 (9th Cir. 1980); United States v. Bemis, 620 F.2d 311 (9th Cir. 1980) (Memorandum disposition). . We indicated at oral argument that we are prepared to cite errant prosecutors who persist in such misbehavior and we shall not hesitate to impose sanctions. Continuing to issue admonitions serves little purpose if we affirm convictions in criminal cases while tolerating prosecutors who lack judgment, common sense and knowledge of appropriate courtroom conduct and permissible argument. . We do not employ a two-part test. We weigh the need for an objection and the seriousness of the error or misconduct together. If the harm is serious enough, we may grant review for that reason alone. See Lopez, supra. . Our decision to invoke the plain error doctrine is influenced by the degree of prejudice caused. The cumulative impact of several errors might therefore be sufficient to persuade us to grant review when the impact of each would not. We do not decide whether several errors may constitute “plain error” in the aggregate or whether, once we decline to review an error, we may no longer consider it for any purpose. In this case, we do not consider the cumulative impact sufficient to warrant review. . The jury deliberated for two and one-half days before acquitting Berry on four of five counts. At oral argument, government counsel on appeal characterized this as a “compromise verdict.” 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_district	I	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". Lawrence E. WILSON, Warden, California State Prison at San Quentin, Petitioner, v. Honorable Stanley A. WEIGEL, Judge of the United States District Court for the Northern District of California, Respondent. No. 22076. United States Court of Appeals Ninth Circuit. Dec. 1, 1967. Thomas C. Lynch, Atty. Gen., Edward P. O’Brien (argued), Deputy Atty. Gen., Deraid E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for petitioner. Nancy A. Rossi, San Leandro, Cal., David Strain (argued), San Francisco, Cal., for respondent. Before POPE, MERRILL and DUNIWAY, Circuit Judges. MERRILL, Circuit Judge: Petitioner, as Warden of the California State Prison at San Quentin, seeks a writ of mandamus to compel respondent district judge to vacate a notice of the taking of a deposition in connection with habeas corpus proceedings now pending before respondent. In those proceedings habeas corpus is sought by Daniel Allen Roberts who is, in interest, the real respondent in the present proceedings. He attacks the legality of his detention in state prison upon the ground that in the state trial resulting in his conviction “testimony known to be false was used by the prosecution,” in support of which he points to conflicting testimony given by his codefendant, Mae Coleman, and another witness, both of whom testified for the prosecution. On July 11, 1967, Roberts, through his counsel, gave notice of his intention to take the deposition of Mae Coleman on oral examination. On July 19, 1967, the Warden, as respondent in the habeas corpus proceedings, gave notice of his motion to vacate the notice of taking of deposition upon the ground that discovery depositions are not authorized in habeas corpus proceedings. On July 20, 1967, following argument by counsel, the District Court entered its order denying the Warden’s motion to vacate. These proceedings were then initiated. The Warden, in support of his petition, relies upon this court’s recent decision in Wilson v. Harris, 378 F.2d 141 (9th Cir. 1967). There the inmate, through interrogatories directed to the Warden, sought to compel him to search his files for evidence which might, in specified respects, reflect upon the reliability of an informer. We held that this discovery-interrogatory procedure of Rules 26 and 33 F.R.Civ.P. is not available in habeas corpus, and, further, that 28 U.S.C. § 2246 has reference to depositions “only for the purpose of obtaining ‘evidence’, and not for general discovery purposes.” 378 F.2d 144. We directed that the District Court order authorizing the propounding of the interrogatories to the Warden be vacated. Roberts urges us to re-examine or distinguish that case and to announce here that discovery depositions may be taken in habeas corpus proceedings. We decline to do so and adhere to our opinion there. To deny criminal discovery at the time of trial only to grant it in post-conviction proceedings seems to us to make little sense. Nor does the result seem to be rendered sensible by characterizing the post-conviction proceedings as civil rather than as criminal; or the issues presented as relating to violation of federal constitutional rights rather than to guilt or innocence. Such a holding could completely destroy finality of state court criminal judgments and render state proceedings mere preliminaries to the unlimited factual exploration available for the first time in federal habeas corpus. Wilson v. Harris, however, is no authority for our vacating the order now before us. To do so would be for us to hold that under no circumstances may the deposition of Mae Coleman be taken. Nothing in the notice of intention to take her deposition discloses the scope of the proposed oral examination, but it is clear that her connection with the case is such that she is in a position to give evidence as to the alleged knowing use of perjured testimony by the prosecution. If it is proper to call her as a witness, it is proper to take her deposition. We specifically noted in Harris that on the question petitioner there sought to raise in his habeas corpus proceeding the Warden could not give admissible evidence. 378 F.2d at 144 n.5. Thus the attempt to serve him with interrogatories was clearly a “fishing expedition,” with no possible purpose of preserving testimony. That is not the case here. Should disputes arise as to the scope of the examination of this deponent they should be resolved by the District Court under F.R.C.P. 37(a) or other appropriate Federal Rules of Civil Procedure, and not by writ of this court. The Warden also contends that evidentiary depositions should not be permitted until an evidentiary hearing has been ordered. No such hearing has yet been directed by the District Court. We agree that in the usual case such would be the more orderly sequence and better calculated to protect against a waste of time and effort upon frivolous proceedings. Such matters, however, traditionally are within the procedural discretion of the trial court which we decline to review by mandamus. Writ denied. . Section 2246 states in part: “On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.” . This problem, as well as the uselessness of relying on the historical label of habeas corpus as a “civil” proceeding, has been noted before. Sullivan v. United States, 198 F.Supp. 624 (S.D.N.Y.1961). . We see no inconsistency in saying that these Federal Rules can here govern the taking of evidentiary depositions, although the Federal Rules authorizing the taking of discovery depositions are not applicable in habeas corpus. There is no general code of procedure for habeas corpus, and no statute outlines the procedures to be adopted in implementing the 28 U.S.C. § 2246 authorization of evidentiary depositions in such proceedings. In formulating procedures for carrying out such a clear statutory mandate, the Federal Rules can be used by analogy by the district courts. We have considered them to be appropriate sources for such procedures in the past. Chessman v. Teets, 239 F.2d 205 (9th Cir. 1956), rev’d on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957). This is a far cry, however, from allowing the creation through analogy of a sweeping discovery process in habeas corpus, unauthorized by any federal statute. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. WOODS, Housing Expediter, v. CAROL MANAGEMENT CORPORATION et al. No. 278, Docket 21003. Circuit Court of Appeals, Second Circuit. June 16, 1948. Ed Dupree, Gen. Counsel, Hugo V. Prucha, Asst. Gen. Counsel, and Nathan Siegel, Sp. Litigation Atty., Office of the Housing’ Expediter, all of Washington, D. C., for plaintiff-appellant. Dreyer & Traub, of Brooklyn, N. Y. (George A. Roland, of Brooklyn, N. Y., of counsel), for defendants-appellees. ' Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The order 'appealed from denied the Housing Expediter’s application for an. injunction pendente lite restraining defendants from interfering with inspections and investigations in apartment houses owned and operated by defendants and directing defendants to permit the Housing Expediter and his agents to enter upon and have ingress along the common public passageways to various apartments, as may be required from time to time in making inspections and conducting investigations. The defendants are landlords and operators of various multiple housing accommodations within the New York City Defense-Rental Area. Without dispute, their accommodations at all times from November 1, 1943, until June 30, 1947, were subject to the Rental Regulation for Housing 'for the New York City Defense-Rental Area, as amended, referred to as the “Rent Regulation,” issued pursuant to the Emergency Price Control Act of 1942, 50 U.S. C.A.Appendix, § 901 et seq. At all times after July 1, 1947, defendants’ accommodations were subject to the Controlled Housing Rent Regulation for the New York City Defense-Rental Area, called the “Controlled Regulation,” issued pursuant to the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. In November 1947 the Expediter authorized his agents to make an inspection of defendants’ housing accommodations in order to determine whether the latter had complied with the provisions of the Rent Regulations and the Acts of 1942 and 1947. The Expediter instituted the investigations because of complaints received from tenants charging that the defendants had demanded and received rent in excess of the maximum permitted by law both before and after July 1, 1947, when the Act of 1947 went into effect. Representatives of the Expediter who called at the defendant’s apartment house in Queens, and afterwards at the office of the latter at 12 East 48th Street, New York City, were denied access to any of the buildings of the defendant for the purpose of conducting an inspection, whereupon the Expediter brought the present suit to restrain the defendants from interfering with the plaintiff’s inspections and moved for the injunction pendente lite which as we have said was denied by the district court. Under Section 202(b) of the 1942 Act the Expediter might require any person renting housing accommodations “to permit the inspection * * * of defense-area housing accommodations.” Section 8 of the rent regulations also required “any person who rents * * * and any tenant to permit such an inspection of the accommodations by the Housing Expediter as he may from time to time require.” This regulation was continued under the Housing and Rent Act of 1947. Where any person engaged in acts in violation of the foregoing provisions or regulations of the Act of 1942 the Expediter was authorized by Section 205(a) of that Act to apply to an appropriate court for an order enforcing compliance. Section 1(b) of the Act of 1942, as amended by the 1946 Act, contained the following provisions: “The provisions of this Act, and all regulations, orders, price schedules, and requirements thereunder, shall terminate on June 30, 1947, or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution by the two Houses of the Congress, declaring that the further continuance of the authority granted by this Act is not necessary in the interest of the national defense and security, whichever date is earlier; except that as to offenses committed, or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.” From the foregoing provisions it seems-to follow that Section 202(b) of the Act of 1942 specifically authorizing inspections, remained in force and covered all offenses-committed before July 1, 1947. This view is supported by the decision of the Supreme Court in Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 119, 67 S.Ct. 1129, 91 L.Ed. 1375. But, apart from those provisions we think the Expediter has the power of inspection claimed here both as to prior and as to the later offenses alleged in the case at bar. Though the 1947 Act decreased somewhat the scope of the authority of the Expediter it still imposed upon him the duty of limiting the rents to existing ceilings, subject to a power of adjustment in the interest of justice. It did not in terms provide for inspection and it omitted the power to issue subpoenas given under the 1942 Act. We, however, believe it to be clear that the-duties imposed by the Act of 1947 as well’ as the regulation adopted pursuant to Section 204(d) thereof justify the right to inspect leased premises in order to detect violations. If, as we hold, the Expediter-through his agents has such a right, Section 206(b) of the 1947 Act and Section-205 (a) of the 1942 Act enabled him to apply for “a permanent or temporary injunction, restraining order, or other order” to-enforce compliance with the Act. The violations of the Act relied upon by the plaintiff were,the refusal to allow inspection and the withholding by the defendants of access to their tenants. The-Expediter represented a public interest and' had an authority to take necessary steps-to prevent such violations. While his information about violations was derived; from complaints of tenants, such complaints, when reasonably verified, might form the basis for various proceedings to enforce the Act, and we see no justification for inconveniencing both the Expediter and the tenants by requiring the former to make his investigations in the roundabout way of summoning the tenants to his office rather than in calling upon them at the apartment and directly ascertaining conditions there. Indeed, it is impossible to see what right the defendants had either to exclude their tenants from having callers or to debar the representatives of the Expediter who wished to talk with the tenants about the alleged grievances of the latter. These representatives sought to call on the tenants as to lawful business with which both the Expediter and the tenants were properly concerned. They were in no sense mere interlopers whom the landlords might exclude from the passageways in the apartment house. For the foregoing reasons the order of the district court is reversed and the case Is remanded with instructions to issue an injunction pendente lite in accordance with {lie views expressed in this opinion. 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_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. Jose Pagan CAMPINO and Oscar Estrada Ruiz, Defendants-Appellants. Nos. 195, 196, Dockets 88-1414, 88-1415. United States Court of Appeals, Second Circuit. Argued Sept. 28, 1989. Decided Nov. 22, 1989. Jerald Levine, Jackson Heights, N.Y., for defendant-appellant Oscar Estrada Ruiz. Barry E. Schulman, Brooklyn, N.Y. (Michael A. O’Connor, Doreen T. O’Connor, Schulman & Laifer, Brooklyn, N.Y., of counsel), for defendant-appellant Jose Pagan Campino. Beryl A. Howell, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee. Before OAKES, Chief Judge, LUMBARD and PIERCE, Circuit Judges. OAKES, Chief Judge: Jose Pagan Campino and Oscar Estrada Ruiz appeal from final judgments of the United States District Court for the Eastern District of New York following a jury trial before Charles P. Sifton, Judge, convicting them of conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and 846 (1982), and of possession of a firearm by an illegal alien, 18 U.S.C. § 922(g)(5) (Supp. V 1987). Appellants were each sentenced to a term of 125 months’ imprisonment followed by three years of supervised release on the first count and to a concurrent term of twelve months’ imprisonment and three years of supervised release on the second count. Campino was also fined $98,000, and both received the mandatory $100 special assessment. Campino and Ruiz raise several claims on appeal: (1) the district court erroneously refused to grant a pre-trial hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) the district court abandoned its impartial role and acted as the government’s advocate during the pretrial suppression hearing; (3) the district court erroneously admitted testimony by law enforcement officials; and (4) there was insufficient evidence to sustain appellants’ convictions because there was no tangible evidence establishing their participation in a cocaine conspiracy. Finding these contentions to be without merit, we affirm. BACKGROUND The investigation that culminated in appellants’ convictions began with the arrest of Nelson Taylor-Lopez, a person apparently unknown to appellants, on December 2, 1987 on a charge of conspiracy to distribute cocaine. A search of Taylor-Lopez’s apartment at 92-29 Queens Boulevard, Queens, New York, on that date turned up, inter alia, a Consolidated Edison bill for an apartment at 121-16 Keel Court in College Point, Queens, and a money order made out to the New York City Parking Violations Bureau that listed the same address. Because Drug Enforcement Administration (“DEA”) agents found items at the Queens Boulevard apartment that they believed to be related to the sale of cocaine but did not find any of the drug itself, they focused their investigation on the Keel Court apartment as the possible “stash” for Taylor-Lopez’s inventory of cocaine. An affidavit executed in support of a search warrant application for the Keel Court apartment by DEA agent William Dolinsky stated that a DEA investigation turned up evidence of several more connections between the apartment and Taylor-Lopez. The evidence included information from two neighbors who identified Taylor-Lopez (through a photograph) as living in the apartment and from four neighbors who stated that a “Spanish looking” resident drove a late model red Corvette, the same type of car that Taylor-Lopez drove. Neighbors also reported suspicious activity at the apartment, including many late night visitors and a recently installed surveillance camera in the building’s hallway. Based on this information, DEA agents received and executed a warrant to search the premises on December 7, 1987. The search revealed, however, that appellants— who had just moved in — and not Taylor-Lopez lived in the apartment. Among the items seized were three notebooks, two receipts, two handguns, three beepers, two mobile telephones, a counterfeit money detector and over $93,000 in cash. DEA agents also seized all kinds of electronic surveillance and counter-surveillance equipment, including vibrating warning devices, “bug” detectors and recording equipment. A two-count indictment was filed against appellants on December 21, 1987. Prior to their trial, the district court denied appellants’ request for a Franks hearing on the truthfulness of the affidavits supporting the warrant application. The court did hold a suppression hearing and found that the search warrant was executed properly. The government’s case at trial was based largely on testimony regarding the notebooks and electronic equipment found at the premises and the practices of drug traffickers. Detective Michael Connors and Agent Dolinsky testified that drug operations typically use sophisticated electronic equipment like that seized from appellants’ apartment. Agents Dolinsky and Richard McCarthy testified that large drug operators typically keep their stash of drugs and financial operations in separate locations. Agent McCarthy also offered expert testimony that the seized notebooks contained the records of a cocaine operation, including ledger sheets showing amounts owed by customers for the purchase of kilogram quantities of the drug, chronological ledgers showing cocaine sales between September and November 1987 and various expenses of the operation. Agent McCarthy connected the financial records to cocaine sales based on the similarity between the street value of a kilogram of cocaine at that time, which he estimated to have been $14,000 to $18,000 per kilogram wholesale, and the figures contained in the notebooks. He also testified that a notebook that listed customers’ names also listed amounts owed to “Ruben,” which was a name used by Campino, and that another notebook listed payments made to “Ruben,” “Oscar” and “Nora.” A handwriting expert testified that the notebooks, receipts and address books seized were written by Ruiz. DISCUSSION 1. Denial of Franks Hearing Appellants claim that the trial court erred in denying their request for a Franks hearing to challenge the affidavit upon which the search warrant was issued. They argue that the DEA agents who prepared the affidavit deliberately failed to interview the landlord of the Keel Court apartment, which would have caused them to learn that Taylor-Lopez no longer lived there. Franks requires that a hearing be held where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.... 438 U.S. at 155-56, 98 S.Ct. at 2676-77. Material omissions from an affidavit are governed by the same rules as false statements. United States v. Ferguson, 758 F.2d 843, 848 (2d Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 (1985). Franks does not require that all statements in an affidavit be true; it simply requires that the statements be “believed or appropriately accepted by the affi-ant as true.” 438 U.S. at 165, 98 S.Ct. at 2681. The trial court denied the request for a Franks hearing because appellants failed to produce evidence of deliberate falsehood or recklessness in the affidavit. We agree and note that the affidavit contained sufficient information to support the agents’ belief that Taylor-Lopez used the Keel Court apartment. Supporting evidence included the electric bill and money order that were seized during the search of his apartment, the identification of his photograph by two neighbors and the presence of a late-model red Corvette at Keel Court. Given these corroborating details, the agents had a sufficient basis for their belief and were not obligated to track down and interview the landlord. Even though the agents turned out to be wrong about who lived in the apartment, that fact alone was insufficient to mandate a Franks hearing. 2. Suppression Hearing Appellants contend that the trial judge abandoned his impartial role and acted as the government’s advocate during the suppression hearing, which focused on whether the search was conducted before or after Magistrate Caden issued the warrant at 12:55 P.M. on December 7, 1987. At the hearing, the government and appellants each presented one witness who testified as to the time of the search. The government’s witness, Agent Dolinsky, testified that the search occurred sometime after 3 P.M. Appellants’ witness, a neighbor who lived across the street on Keel Court, testified that the search began between noon and 1 P.M. Although appellants argue that the judge then directed the government to call its second witness, Sergeant Robert Plansker of the New York Drug Enforcement Task Force, the transcript does not bear this out. Faced with conflicting testimony and what he considered to be a close issue of credibility, the judge suggested that the government should call another witness. In so doing, the court acted within its province. It is the very function of the trial court to establish the facts as clearly and completely as possible. To fulfill that function effectively, indeed, the court is empowered to call and question witnesses sua sponte. See Fed.R.Evid. 614(a)-(b). By seeking additional evidence to resolve a clear conflict, the court in no way displayed a predisposition towards the government’s position. 3. Admissibility of Testimony Appellants raise three main issues concerning the testimony of law enforcement officials: (1) Agent Dolinsky and Detective Connors, who investigated the case, had a conflict of interest when they also gave expert opinion testimony; (2) Agent McCarthy was not qualified as an expert; and (3) Agent McCarthy testified as to conclusions of law beyond the scope of Fed.R.Evid. 704. We note at the outset that appellants face a heavy burden. Fed.R.Evid. 702 allows a qualified expert to testify in the form of an opinion if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue....” A decision to allow expert testimony is within the broad discretion of the trial judge and is to be sustained on appeal unless manifestly erroneous. United States v. Brown, 776 F.2d 397, 400 (2d Cir.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986); United States v. Young, 745 F.2d 733, 760 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). We have repeatedly held that “the operations of narcotics dealers are a proper subject for expert testimony under Fed.R.Evid. 702.” United States v. Diaz, 878 F.2d 608, 617 (2d Cir.1989) (quoting United States v. Nersesian, 824 F.2d 1294, 1308 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987)). Appellants claim that the trial court should not have permitted Agent Dolinsky and Detective Connors, who investigated appellants’ case, to testify about the methods of drug operations. Appellants specifically object to testimony concerning drug dealers’ use of electronic surveillance and counter-surveillance equipment like that found at the apartment and their use of stash houses for drug money. However, as we have held previously, it is “not improper for the government to elicit this expert testimony from law enforcement officers who also testified as fact witnesses.” Young, 745 F.2d at 760. Furthermore, the danger of confusion to the jury between fact and opinion testimony was minimized by the court’s admonitions to the witnesses not to draw conclusions about appellants’ conduct. As to the testimony of Agent McCarthy, there is ample evidence to support the district court’s ruling that he was qualified to be an expert on narcotics transactions pursuant to Rule 702. A DEA agent for five years, Agent McCarthy had participated in hundreds of DEA narcotics investigations, half of which involved cocaine. He had an advanced degree in economics, had taught accounting and had reviewed records seized from cocaine operations on at least a hundred occasions. Given these facts, we cannot say that the district court ruling was manifestly erroneous. Cf. Diaz, 878 F.2d at 616-18 (Agent McCarthy testified as expert). Furthermore, Agent McCarthy’s testimony regarding the contents of the three notebooks that were seized and the hierarchy of drug distribution operations did not exceed that which is permissible under Rule 704. Although trial courts must be cautious about the use of expert testimony in criminal prosecutions, see, e.g., Brown, 776 F.2d at 401 & n. 6, Agent McCarthy’s analysis of the notebooks was the sort of “expert testimony to explain the use of narcotics codes and jargon” that we have found permissible. See Nersesian, 824 F.2d at 1308 (citing cases); see also Diaz, 878 F.2d at 616-18 (upholding the admission of testimony by Agent McCarthy interpreting seized financial records). The court properly reminded the jury that the testimony reflected only Agent McCarthy’s opinion as to the contents of the notebooks and that they were free to reject his testimony entirely if they found it unsupported by the evidence. Unlike Brown, Agent McCarthy testified as an expert and not as a member of the investigation team, further reducing the danger of confusion to the jury. Accordingly, we find the objections to the expert testimony at appellants’ trial to be without merit. 4. Sufficiency of Evidence Lastly, appellants argue that there was insufficient evidence to support the charge that they participated in a cocaine conspiracy because the only evidence linking them to the drug was expert testimony. It has often been repeated that a party challenging the sufficiency of evidence bears a very heavy burden. E.g., Diaz, 878 F.2d at 618 (quoting United States v. Chang An-Lo, 851 F.2d 547, 553 (2d Cir.), cert. denied, - U.S. -, 109 5.Ct. 493, 102 L.Ed.2d 530 (1988)). The test to be applied is “whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt.” Diaz, 878 F.2d at 618 (quoting Chang An-Lo, 851 F.2d at 554). The evidence is to be viewed in the light most favorable to the government, and all permissible inferences are to be construed in the government’s favor. Diaz, 878 F.2d at 618. This is not the first time we have faced the issue of the sufficiency of evidence of a cocaine conspiracy when no cocaine was found. Although no cocaine was found in Diaz, supra, we held that evidence from financial ledgers, suspicious activity and large amounts of cash was sufficient to sustain a cocaine conspiracy conviction. Id. at 618-20. Like Diaz, the evidence adduced at appellants’ trial consisted of notebooks listing sales of kilogram quantities of cocaine; records indicating that appellants received payments for the drugs; and surveillance and counter-surveillance equipment and cash seized from their apartment. Although the records were written by Ruiz, the fact that they listed payments to Campino (using an alias) was sufficient for the jury to tie the latter into a cocaine conspiracy. We thus find that there was sufficient evidence to convict appellants of the cocaine conspiracy. CONCLUSION We have considered all of appellants’ contentions and find them to be without merit. Accordingly, the judgments of conviction are affirmed. . Nora Estrada Ruiz, who is Campino’s wife and Ruiz’s sister, also lived in the apartment and was arrested at the scene. She is presently a fugitive. . The relevant exchange reads: The Court: So that is it, citizen against government official. I am supposed to go with the government official? That is the argument? AUSA: No, Your Honor, I think— The Court: Trained observer against untrained observer; that is it? How many people were there at the time? AUSA: During the execution? The Court: What inference do you think I ought to draw from the fact that you don’t even put these people on the stand? AUSA: Your Honor, we can call additional agents. The Court: You are darned right you can. They still work for the government; don't they? What kind of system do you think this is where a citizen comes in whose business is up in the Bronx, gives his testimony under oath, creates a clear conflict of credibility, and I am supposed to go and believe the government agent, even though there are other people who could come in here and testify under oath and help me revolve [sic] the credibility issue?.... You have no one further to call? AUSA: No, Your Honor, the government will call an additional agent who was at the scene. Transcript of Mar. 22, 1988 at 54-55. . We note that Diaz, which was decided six days before appellants filed their brief and was not cited in it, is dispositive of most of appellants' arguments concerning the use of expert testimony and the sufficiency of the evidence. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Respondent, v. Paul N. HANKISH et al., Petitioner. Misc. No. 943. United States Court of Appeals, Fourth Circuit. July 10, 1972. Robert G. Perry, Charleston, W. Va., on petition for petitioner. John A. Field, III, U. S. Dist. Atty., and Robert King, Asst. U. S. Atty., for respondent. Before BOREMAN and BRYAN, Senior Circuit Judges, and WINTER, Circuit Judge. PER CURIAM : Criminal Action No. 71-55 was instituted against Paul N. Hankish and James L. Matthews in the Southern District of West Virginia at Charleston. Robert G. Perry, an attorney of Charleston, West Virginia, appeared on behalf of defendant Hankish. The Government moved the court to disqualify Mr. Perry from representing Hankish and the matters arising on the motion were referred by Judge Sidney L. Christie of the Southern District of West Virginia to Judge Robert E. Maxwell of the Northern District of West Virginia for hearing and determination. The Government alleged that Mr. Perry had represented one Jackie Longfellow who had been convicted of a felony and who was expected to be a material witness for the Government in. the criminal action against Hankish. After hearings, Judge Maxwell entered an order disqualifying Mr. Perry from serving as counsel for Hankish, primarily on the ground that there was a strong probability of a conflict of interest by reason of Mr. Perry’s earlier representation of Longfellow, and in an opinion and order Judge Maxwell stated: “So, it will be the judgment of the Court here, that for the protection of all parties, the professional integrity and the integrity of the litigation, the protection of the rights of the accused; that the motion should be granted. “The motion, however, will be stayed until the evening of January the 31st at 7:30 p. m.” Thereafter a formal order was entered by Judge Maxwell disqualifying Mr. Perry as attorney for Hankish, the effective date being January 31, 1972. However, the disqualification order entered January 31, 1972, contained the following provisions: “The Court is further of the opinion and does hereby advise the defendant, Paul N. Hankish, that it would appear that at least three (3) options are open to him in this matter, those being : (1) He may employ new counsel; (2) He may attempt an immediate appeal, if appropriate, from this order ; and/or (3) He may execute a waiver, if such is done knowingly and voluntarily, of any conflict or possible conflict which may occur or exist insofar as Robert G. Perry .is con-cened arising from- the matters of record herein, as set forth in the record of the proceedings herein, which are hereby incorporated by reference herein. It is further “ORDERED that, there being nothing further to be done in this District that this matter be transferred back to the Southern District of West Virginia, subject to the right of the defendant to reopen these proceedings in the event that he may desire to execute and tender such a knowing and voluntary waiver, if any, to this court.” On March 31,1972, no further proceedings having been had in these matters, a hearing was held before Judge Christie in the Southern District of West Virginia at-which time Mr. Perry advised that he was in the process of appealing Judge Maxwell’s order and that the appeal would be filed, together with a brief, on the 12th day of April, 1972. On April 24, 1972, no proceedings having been instituted in this court, the United States Attorney directed a letter to Judge Christie and asked that a date be fixed for the arraignment of Hankish in Criminal Action No. 71-55. On the following day Mr. Perry advised the district court by telegram, a copy of which was received by the United States Attorney, that a “petition” would be presented to the Fourth Circuit on Monday, May 1, 1972. On May 1, 1972, the Clerk of this court received a “petition” praying that this court grant petitioner a full and complete hearing upon the matters arising upon the original motion of the Government for disqualification of counsel or, in the alternative, that this court hear and determine the petition upon oral argument and briefs; further that the order of the district court disqualifying counsel be reversed and that the district court be ordered to permit the continued service of Mr. Perry as petitioner’s counsel in the defense of the indictment pending in the district court in Criminal Action No. 71-55. At the same time the Clerk received a “brief” purporting to be in support of said petition. In the proceedings before Judge Maxwell defendant Hankish, speaking for himself, stated to the court that he would be willing to waive any possible prejudice to him because of representation by Mr. Perry and later, when the case was called up before Judge Christie, Mr. Hankish personally stated to the court that if the Fourth Circuit Court of Appeals afforded no relief he would execute a waiver of possible prejudice which might develop through continued representation by Mr. Perry. It was at that time that defense counsel notified Judge Christie that he was asking this court for review and in response to interrogation by the court counsel answered, “All that we’re doing, Judge, is by petition and a copious brief, asking the court, the Fourth Circuit to entertain an appeal to an interlocutory order and to overturn the order. “Now, of course, I have no idea whether or not they will do that, but I would concede on the record it is hard to get them to do it.” In response to further interrogation by the court Mr. Perry stated that this was not a certification, that it was not an appeal from a final order, and that the defendant did not have an appeal as a matter of right. In his petition and his seven-page brief there is no citation of any statute or case law as a basis for invoking this court’s jurisdiction. An order such as the one here complained of might be held to fall within that class of orders described in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), as “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole ease is adjudicated,” and thus to be a final order appealable under 28 U.S.C. § 1291. Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555 (2 Cir. 1956), cert. denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38 (1957). See Fleischer v. Phillips, 264 F.2d 515 (2 Cir. 1959), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959). If we should follow the decision in Harmar, the order in the instant case would be appealable under the rule in Cohen. However, the petitioner has filed no notice of appeal and is inexcusably out of time in attempting to prosecute an appeal under 28 U.S.C. § 1291. We have considered the possibility that this vague application for review might be treated as a petition for a writ of mandamus under the All Writs Statute, 28 U.S.C. § 1651, and that the writ might lie thus enabling this court to review the instant order. However, this court, in its discretion, may refuse to issue the writ if a method of review has been provided by statute and the petitioner has failed to utilize it. Bartsch v. Clarke, 293 F.2d 283 (4 Cir. 1961). Assuming that Harmar Drive-In, swpra, was correctly decided and that Judge Maxwell’s order of disqualification was at one time appealable, we conclude that we should not consider the issuance of a writ of mandamus in this case for the following reasons: 1. Hankish and his counsel have been inexcusably dilatory in seeking any relief from the district court’s order and it cannot be said that he has made any effort to perfect an appeal as an appeal from a “final” order. 2. In order to issue a writ of mandamus we would be required to construe, with extreme liberality, Hankish’s request for review as a petition for the writ and we conclude that under the circumstances any such construction would be unjustifiable. 3. It has been held in numberless cases that resort may not be had to mandamus as a substitute for an appeal. For example, see Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). If a writ of mandamus were to be issued here it would clearly be a substitute for an appeal, the right to such appeal having been neither asserted nor pursued. 4. The Second and Ninth Circuits have held that review of an order denying a motion to disqualify could be had by way of an interlocutory appeal under 28 U.S.C. § 1292(b). Marco v. Dulles, 268 F.2d 192 (2 Cir. 1959); Cord v. Smith, 338 F.2d 516 (9 Cir. 1964). In Cord, the Ninth Circuit held that the order refusing disqualification was not appealable under the Cohen rule and was appealable pursuant to § 1292(b). Since there had been no certification under § 1292(b) the court concluded by granting mandamus to review the question. We have found no authority clearly supporting the issuance of a writ of mandamus to review an order granting a motion to disqualify. We do not view the decision in Cord, supra, as such authority. For a discussion of the subject of appealability see 9 Moore’s Federal Practice j[ 110.13 [10], 5. The issuance of a writ of mandamus here would appear to be on less than firm ground when Hankish has been informed by the district court that he ■might be represented by his employed counsel if he would waive objections to any conflict of interest on his counsel’s part and any prejudice to himself that might develop therefrom at trial. Han-kish was personally present during all of the proceedings before Judge Maxwell and Judge Christie. It was vigorously contended that motion for disqualification of counsel was without evidentiary support because there was no showing of possible conflict of interest on the part of counsel and there was no possibility that any prejudice to Hankish could develop because of Mr. Perry’s earlier representation of Longfellow. In light of these contentions that no prejudice could possibly arise it would appear that Hankish has conceded that a waiver of prejudice from continued representation by Mr. Perry would not be harmful. If we were to adopt the view that Harmar Drive-In was incorrectly decided and that the order here complained of was not appealable under 28 U.S.C. § 1291, we conclude that the issuance of a writ of mandamus would still appear to be inappropriate and unjustified. Mandamus will ordinarily lie only when the district court has clearly abused its discretion or when the petitioner can establish a clear and certain right and that the duties of the court were basically ministerial. Such factors are lacking here. The petitioner can have the benefit of counsel of his own choice by executing a waiver of possible prejudice, which waiver, according to petitioner’s own avowals, would be harmless. Under the circumstances here, we decline to take jurisdiction of the matters presented in connection with the petition of defendant Hankish. It is so ordered. 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_treat	F	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. James PATRICK, Appellant in No. 79-1367, v. CAMDEN COUNTY PROSECUTOR, Superintendent, Trenton State Prison, and the Attorney General of the State of New Jersey, Appellants in No. 79-1264. Nos. 79-1264, 79-1367. United States Court of Appeals, Third Circuit. Submitted under Third Circuit Rule 12(6) on July 11, 1980. Decided Sept. 18, 1980. John B. Mariano, Camden County Prosecutor, Joseph F. Audino, First Asst. Prosecutor, Marc Weinberg, Asst. Prosecutor, Camden, N. J., for appellants. Abraham Kinstlinger, Newark, N. J., for cross-appellant James Patrick. Before SEITZ, Chief Judge, ADAMS, Circuit Judge, and WEINER, District Judge. Honorable Charles R. Weiner, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT PER CURIAM: This case presents cross-appeals from an order of the district court granting the habeas corpus petition of James Patrick and ordering that he be resentenced in state court. I. In 1975 James Patrick was charged in a 12-count indictment with a variety of drug-related offenses. He subsequently entered into a plea bargain with the office of the Camden County Prosecutor (the prosecution) under which he agreed to plead guilty to four counts of the indictment in exchange for dismissal of the other counts. As part of the plea bargain, the prosecution agreed to make no recommendations as to the sentence that Patrick should receive, but it reserved the right to “comment and make remarks appropriate ... to the magnitude of the sentence imposed.” At sentencing, an assistant county prosecutor stated that Patrick “should receive the maximum penalty dictated by law” and that “this particular individual deserves the maximum penalty prescribed by law.” After imposition of sentence, Patrick unsuccessfully appealed his conviction and sentence in the New Jersey state courts. He then filed a petition for habeas corpus in the district court, arguing that the assistant prosecutor’s remarks at sentencing constituted a recommendation of sentence in violation of the plea bargain. The district court construed the prosecution’s duty under the plea bargain not to “recommend” a sentence as prohibiting any request for a specific sentence. It treated the prosecution’s reservation of the right to “comment” as permitting statements regarding the circumstances of the case bearing on sentencing, but not allowing any references to a particular term of imprisonment. Because both parties had been informed at the time of the plea that the maximum possible sentence for the counts to which Patrick pled guilty was 41 years, the court concluded that the prosecution, by referring to the maximum penalty permitted by law, had urged the court to impose a specific sentence. Therefore, it held that the prosecution had made a prohibited recommendation of sentence. Based on its finding of this violation of the plea bargain, the district court granted Patrick’s habeas corpus petition and ordered that he be resentenced by a different state court judge in a proceeding in which the prosecution made no statement requesting or implying that a particular sentence be imposed. These cross-appeals followed. II. The prosecution’s appeal contests the district court’s conclusion that the statements of the assistant prosecutor violated the plea bargain. After considering the record and the parties’ briefs, we agree with the district court that the statements about the maximum penalty authorized by law constituted a recommendation as to the sentence Patrick should receive and violated the plea bargain. Therefore, the district court properly held that Patrick was entitled to habeas corpus relief. III. Turning to the cross-appeal, Patrick argues that the district court erred in ordering specific performance of the plea bargain by directing that he be resentenced in a proceeding without improper prosecution statements regarding sentence. He contends that the court should have allowed him to withdraw his plea. Although it is not made clear in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that the violation of a plea bargain by the state involves a defendant’s due process right, we are satisfied that such a right is implicated. We think Santobello dictates that if there is a violation of a plea bargain, the relief to be afforded is within the discretion of the state court, at least where more than one remedy is legally permissible. In State v. Thomas, 61 N.J. 314, 294 A.2d 57, 62 (1972), the Supreme Court of New Jersey held: Where there has been a failure on the part of the prosecution to abide by the terms of a plea bargain, the remedial step will normally be either to vacate the guilty plea and permit the defendant to plead anew, or to direct that such steps be taken as may be necessary to carry out the terms of the agreement. See also United States v. American Bag & Paper, 609 F.2d 1066, 1068 (3d Cir. 1979) (per curiam) (holding that the same remedies apply to the violation of a plea bargain by a federal prosecutor). Rather than leaving the remedy to the discretion of the state court, the district court ordered that Patrick be resentenced. The district court’s order thus deprived the state sentencing judge of the right to exercise his discretion to determine whether to specifically enforce the plea bargain or strike the plea. Moreover, the state judge, by resentencing Patrick promptly in compliance with the order of the district court, compounded the district court’s error. At least where, as in this case, the due process violation can be cured by either of these remedies, the state judge should be given the opportunity to decide which remedy is more appropriate in the first instance. We will therefore vacate the order of the district court insofar as the remedy is concerned with a direction that a new order be entered which shall provide that the writ will issue unless within a stipulated time the state judge vacates the sentence imposed and thereafter determines in the exercise of discretion whether to grant specific performance of the plea bargain or to strike the plea. . We take occasion to note that the habeas corpus relief here took the form of an order directing the state court to take certain action. A habeas corpus order should direct that the writ will issue unless the stipulated conditions are met by the state authorities within a designated period of time. . The state court has complied with the order of the district court. It has not been suggested, however, that this action has rendered this appeal moot. 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, Plaintiff-Appellee, v. Kent Thomas L’ALLIER, Defendant-Appellant. No. 87-1460. United States Court of Appeals, Seventh Circuit. Argued Oct. 2, 1987. Decided Jan. 28, 1988. Gerald C. Nichol, Madison, Wis., for defendant-appellant. Daniel P. Bach, Asst. U.S. Atty., John R. Byrnes, U.S. Atty., Madison, Wis., for plaintiff-appellee. Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges. FLAUM, Circuit Judge. Defendant-appellant, Kent Thomas L’Al-lier, was convicted of two counts of armed robbery under 18 U.S.C. §§ 2113(a) and (d). L’Allier challenges his conviction on the grounds that: (1) the government’s delay in indicting him violated the due process clause of the fifth amendment; (2) the district court’s denial of his motion to suppress identification evidence was an abuse of discretion; (3) counts I and II of his indictment were improperly joined and the district court abused its discretion when it denied his motion to sever; and (4) the district court erred by permitting the introduction of certain evidence despite the government’s failure to establish a complete chain of custody. We affirm. I. On October 29, 1984, a single armed robber took $7,940 from the Community State Bank of Eau Claire, Wisconsin. Witnesses described the robber as a man between five feet ten inches and six feet tall, 160 to 170 pounds, with a slim build. The robber wore a white hooded sweatshirt with the hood pulled up, dark gloves, dark glasses, a false mustache and a false beard. He fled the bank on foot into a nearby neighborhood. A few days before the robbery, a resident of Chippewa Street (a street near the bank) saw a man wearing a white sweatshirt with “USA” printed on the front “scouting” the neighborhood. On April 22, 1985, the Community State Bank of Eau Claire was robbed again by a single armed robber. This time the robber took $3,085 from the bank, including $500 of prerecorded bait bills in $20 denominations. Witnesses described the robber as a man with a slim build, between five feet eight inches and six feet tall, and weighing between 140 and 170 pounds. The robber wore a blue hooded sweatshirt, a green stocking cap, dark glasses, brown work gloves, a false mustache and a false beard. The robber was armed with a small chrome or silver plated revolver. He fled the bank on foot toward the homes on Chippewa Street. From October 11, 1984 through October 17, 1984, L’Allier rented a room at the Westgate Motel in Eau Claire, Wisconsin under the name “Dennis Sigsworth.” The defendant again rented a room at this hotel under this same alias from April 10, 1985 to April 16,1985 and on several other occasions. The defendant was arrested on an unrelated charge on June 24, 1985. When arrested, L’Allier identified himself as Dennis Sigsworth. The arresting officers found a small silver revolver wrapped in a green ski mask in L’Allier’s car. L’Allier’s car was then driven to the St. Croix County Sheriff’s Department where it was sealed with evidence tape. Earl Clark and Mark Willink of the St. Croix Sheriff’s Department conducted an inventory search of the car on June 25, 1985. At trial, Clark testified that during the inventory search of L’Allier’s car they found three white hooded sweatshirts and at least one blue pullover. Willink testified that they found three white hooded sweatshirts, one of which had “USA” in red letters on the front, and two blue pullovers. They also found two pairs of brown work gloves. In addition, Clark and Willink found ten twenty dollar bills, seven of which were bait bills from the April 22, 1985 bank robbery. On July 10, 1985, the St. Croix Sheriff’s Department released L’Allier’s car and personal articles to his brother, Randy L’Allier. An FBI agent retrieved three sweatshirts, one plain white, one blue and one white with the letters “USA” printed on it, from Randy’s home on July 16th. On October 8, 1986, a federal grand jury indicted L’Allier on two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). The first count charged L’Allier with the October 29, 1984 armed bank robbery of the Community State Bank of Eau Claire, Wisconsin. Count II charged the defendant with the April 22, 1985 armed robbery of the same bank. The defendant moved to dismiss his indictment on the basis of impermissible prein-dictment delay. The district court denied the motion. Before trial, L’Allier also moved to have counts I and II of his indictment severed. L’Allier argued that severance was required because the crimes charged in the two counts were not sufficiently related. L’Allier also asserted that severance was necessary on the ground that the government’s case on count II was much stronger than its case on count I. This disparity in the strength of the government’s evidence, L’Allier argued, would prejudice his defense and cause a jury to convict him on both counts, even though standing alone there was not enough evidence to prove guilt beyond a reasonable doubt on count I. The district court also denied this motion. At trial, L’Allier moved to suppress any in-court identification of himself by Rick Iverson, a government witness, on the ground that Iverson’s identification would be based on an impermissibly suggestive pretrial identification procedure. Iverson testified that he saw the defendant outside the Eau Claire bank just prior to the April 22, 1985 robbery, but admitted that he had been shown a pretrial photo display. The district court held that the pretrial identification procedure was not impermissibly suggestive and therefore denied L’Allier’s suppression motion. Finally, L’Allier sought to prevent the introduction into evidence of several sweatshirts because the government could not establish a complete chain of custody. The district court admitted the sweatshirts over L’Allier’s objection. A jury found L’Allier guilty of both armed bank robberies. The district court sentenced L’Allier to two consecutive ten year prison sentences, and to an additional five year prison term on each count pursuant to the enhancement provisions of 18 U.S.C. § 924(c). The five year enhancement sentences are concurrent with one another and consecutive to the initial ten year sentences. II. L’Allier first argues that the district court erred in denying his motion to dismiss his indictment. L’Allier claims that excessive pre-indictment delay actually and substantially prejudiced his defense in violation of the due process clause of the fifth amendment. L’Allier was arrested on charges unrelated to the bank robberies on June 24, 1985. The following day, the St. Croix Sheriff’s Department performed an inventory search of his car which revealed evidence linking L’Allier to both armed robberies. L’Allier was not indicted for the armed bank robberies, however, until October 8, 1986 — two years after the first robbery and sixteen months after the search of his car revealed evidence related to those crimes. L’Allier argues that this delay was excessive and caused him actual and substantial prejudice in the presentation of his defense. L’Allier claims actual and substantial prejudice to his defense in two different forms. First, L’Allier asserts that as a result of the delay his memory of the events of October 29, 1984 and April 22, 1985 was diminished. Thus, L’Allier argues, he was unable to assist his counsel because he could not recall his whereabouts and activities on the dates of the robberies. Second, L’Allier alleges that he was prejudiced by a similar memory loss on the part of the witnesses to the bank robberies. L’Allier argues that the witnesses’ faded memories prejudiced his defense because the witnesses could not clearly recall whether or not he was actually the person they saw robbing the bank on those dates. There is no evidence, apart from L’Allier’s allegations, that he or any witness to the robberies was actually unable to recall any of the events of October 29, 1984 or April 22, 1985. The relevant statute of limitations provides the primary protection for defendants against prejudice that could result from excessive pre-accusation delay. United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). The indictment in this case was returned well within the applicable statute of limitations. The due process clause of the fifth amendment, however, does have a limited role to play in the protection of defendants’ rights prior to indictment and the prevention of oppressive delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). Thus, an indictment must be dismissed pursuant to the due process clause if a defendant can show that the pre-indictment delay caused substantial prejudice to his or her right to a fair trial and the delay was intentionally designed to gain a tactical advantage over the defendant. Marion, 404 U.S. at 324, 92 S.Ct. at 465. The defendant bears the burden of showing actual and substantial prejudice to his or her defense resulting from the delay. United States v. Brock, 782 F.2d 1442, 1443 (7th Cir.1986). While actual prejudice makes a due process claim ripe for adjudication, it does not make the claim automatically valid. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. “[Pjroof of prejudice is generally a necessary but not sufficient element of a due process claim,” the reasons for the delay must be considered along with the prejudice to the defendant. Id. at 790, 97 S.Ct. at 2048-49. Even a short and necessary delay may actually and substantially prejudice a defendant’s case, and yet “no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.” Marion, 404 U.S. at 324, 92 S.Ct. at 465. A court must therefore weigh the actual prejudice to the defendant against the reasons for the delay to determine whether a particular indictment must be dismissed pursuant to the due process clause. Id. at 325, 92 S.Ct. at 466. Thus, even if L’Allier can show actual and substantial prejudice to his defense as a result of the sixteen month pre-indictment delay, the indictment will not be dismissed if there was a legitimate reason for the delay. L’Allier’s only allegation of prejudice is that his and the witnesses’ memories faded as a result of the delay. L’Allier, however, can point to no evidence in the record to substantiate this claim. Such unsupported allegations cannot establish actual or substantial prejudice to L’Allier’s defense. See Brock, 782 F.2d at 1444 (Brock’s unsubstantiated allegation that his memory may have faded was insufficient to establish actual and substantial prejudice); United States v. Watkins, 709 F.2d 475, 479 (7th Cir.1983) (a general assertion that delay prevented the defendant from accurately reconstructing events does not constitute a showing of substantial and actual prejudice). L’Allier’s unsupported allegation of memory loss therefore does not constitute the requisite substantial prejudice required to prove a due process violation. There is a conflict in this circuit as to whether the defendant or the government bears the burden of establishing the reasons for the pre-indictment delay once the defendant successfully shows actual and substantial prejudice. See, e.g., Brock, 782 F.2d at 1443 n. 1. Because we find that L’Allier failed to meet his burden of showing actual and substantial prejudice to his defense, we need not resolve this conflict. United States v. Williams, 738 F.2d 172, 175 (7th Cir.1984). We note, however, that the government was either unable or unwilling to explain the substantial delay in this case. The government makes no claim that the delay resulted from a continuing investigation, nor does it assert that additional information was sought or discovered during the sixteen months between L’Allier’s arrest and indictment. The government had significant evidence linking L’Allier with the robberies as early as June 25, 1985; it is troubling that it took a full sixteen months from that date to indict him on these charges. Because we find that L’Allier failed to meet his threshold burden of showing actual and substantial prejudice to his defense, we hold that the district court did not abuse its discretion in denying L’Allier’s motion to dismiss his indictment. III. L’Allier next argues that the district court erred when it permitted Rick Iverson, a government witness, to identify L’Allier in court as the person he saw outside the Community State Bank of Eau Claire just before the bank robbery on April 22, 1985. L’Allier argues that Iverson’s in-court identification was tainted by an impermissibly suggestive pretrial photo line-up that was shown to Iverson on July 17, 1985. Thus, L’Allier claims there was a substantial likelihood that Iverson’s in-court identification was the result of irreparable misidentification. Suggestive confrontations are disapproved because they increase the risk that a conviction will be based on a misidentifi-cation. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). The court must consider the facts of each case to determine whether or not “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). If the confrontation procedure was impermissibly suggestive, an in-court identification will be permitted only if under the “totality of the circumstances the identification was reliable.” Biggers, 409 U.S. at 199, 93 S.Ct. at 382. The defendant has the initial burden of establishing that the confrontation procedure was impermissibly suggestive. United States v. Briggs, 700 F.2d 408, 412 (7th Cir.), cert. denied, 462 U.S. 1110, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983). Only if the defendant meets this initial burden will the court consider the admissibility of the identification under the “totality of the circumstances” test. Id. To meet his initial burden of proving that the photo line-up was impermissibly suggestive, L’Allier must show that there was a substantial likelihood that Iverson’s identification was based on an irreparable misidentification. L’Allier has not met this threshold requirement. Iverson was shown seven photographs and asked if he could identify the man he saw outside of the Community State Bank on the day of the second robbery. There is no evidence that the FBI agent who displayed the photographs said or did anything that would have suggested that Iver-son should pick L’Allier’s photograph from the line-up. L’Allier argues that the photo line-up was impermissibly suggestive because there were differences in the exposure and the quality of the photographs in the display. L’Allier also takes issue with the fact that two of the seven photographs were the type ordinarily used by the police, and one of those two pictures was the photograph of L’Allier. A review of the photographs, however, reveals that the asserted differences are minor and not suggestive. Such minor differences standing alone do not establish that the confrontation procedure was impermissibly suggestive. See United States v. Kimberlin, 805 F.2d 210, 227 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987). L’Allier failed to carry his burden of showing that there was a substantial likelihood of misidentification resulting from the photo line-up. We hold, therefore, that the district court did not err in permitting Iver-son’s in-court identification of the defendant. IV. A. L’Allier also argues that his conviction must be reversed because counts I and II of his indictment were improperly joined under Rule 8(a) of the Federal Rules of Criminal Procedure. L’Allier claims that joinder of these counts was so prejudicial that he did not receive a fair trial. According to L’Allier, the only common element between counts I and II is that they both involved armed robberies of the same bank. On appeal, the issue of whether joinder was proper is a question of law which we review de novo. United States v. Shue, 766 F.2d 1122, 1134 (7th Cir.1985). A conviction obtained under improperly joined counts can be reversed. Id. See also United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981) (“Improper joinder under Rule 8 requires mandatory severance.”). Although a liberal joinder rule would promote judicial economy and expedition, it is undisputed that joinder can be prejudicial. Therefore, the benefits of joinder must be balanced against the defendant’s right to a trial free of prejudice. Holmes v. Gray, 526 F.2d 622, 625 (7th Cir.1975), cert. denied, 434 U.S. 907, 98 S.Ct. 308, 54 L.Ed.2d 194 (1977). The Federal Rules of Criminal Procedure perform part of this balance by permitting the joinder of offenses only when certain specified conditions are met. Rule 8(a) allows joinder of two or more offenses only “if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). Joinder of offenses on the ground that they are of the same or similar character is permissible if the “counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps.” Shue, 766 F.2d at 1134 (quoting United States v. Rodgers, 732 F.2d 625, 629 (8th Cir.1984)). This standard does not require that every piece of evidence of one offense be admissible in a separate trial on the other offense. Rather, the joinder rule “looks in a broader sense to whether the rules relating to ‘other crimes’ evidence have been satisfied.” Baker v. United States, 401 F.2d 958, 975 (D.C.Cir.1968) (per curiam); Holmes, 526 F.2d at 625 n. 3. The government argues that counts I and II of L’Allier’s indictment were properly joined because they involve offenses of the same or similar character. We agree. Counts I and II charged L’Allier with the armed bank robbery of the same bank on two separate occasions, the robberies occurred within six months of one another, and evidence of one robbery would have been admissible, with a proper limiting instruction, in a separate trial of the other robbery to establish the bank robber’s modus operandi. The witnesses’ descriptions of the perpetrator of both robberies were similar. The robberies occurred at the same time of day, both times a single armed robber entered the bank wearing a false mustache and beard, dark work gloves, and dark glasses. On both occasions the robber carried a small firearm and fled on foot into a nearby neighborhood. In both robberies the armed robber wore a hooded sweatshirt; the first time it was a white sweatshirt with the hood pulled up, the second time it was a blue sweatshirt with the hood down and a green ski cap. Prior to both robberies L’Allier was registered under the same false name at a motel in Eau Claire, Wisconsin. Finally, when L’Allier was arrested on June 24, 1985, evidence relating to both robberies was found in his car. The extensive similarities between the bank robberies charged in each count, the overlap of evidence, and the relative closeness in time of the two crimes make joinder proper in this case under Rule 8(a). See Shue, 766 F.2d at 1134 (joinder proper where counts alleged robberies of different banks, robberies occurred fifteen months apart, robber used fake grenade in one robbery and fake or unloaded gun in the others). We hold therefore that joinder under Rule 8(a) was appropriate in this case. B. L’Allier asserts that even if joinder was proper, however, it was sufficiently prejudicial that severance was required under Federal Rule of Criminal Procedure 14 and the district court’s denial of his motion for severance violated his right to due process under the fifth amendment. L’Allier alleges that he was prejudiced as a result of the district court’s denial of his severance motion because the jury was confused by the joinder and was unable to separate the evidence relevant to each robbery. Because the evidence against him was much stronger on the April 22, 1985 armed robbery (count II) than on the October 29, 1984 robbery (count I), L’Allier argues that he would not have been convicted on count I if the two counts had been severed and tried separately. Rule 14 authorizes a district court to sever offenses if joinder would be prejudicial to either party. See, e.g., United States v. Shearer, 606 F.2d 819, 820 (8th Cir.1979). The decision to grant or deny a motion for severance under Rule 14 is within the discretion of the district court. The district court’s decision will not be reversed unless the party opposing the grant or denial of severance demonstrates a clear abuse of discretion. United States v. Pavelski, 789 F.2d 485, 491 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 322, 93 L.Ed.2d 295 (1986); United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985). To obtain severance, L’Allier must show actual prejudice resulting from the joinder of counts I and II, not merely that he would have a better chance of acquittal if the counts were severed. Percival, 756 F.2d at 610; United States v. Abraham, 541 F.2d 1234, 1240 (7th Cir.1976), cert. denied, 429 U.S. 1102, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977). L’Allier has not established actual prejudice. The trial was short, the evidence was not complex, and the chronological nature of the evidence made it relatively simple for the jury to relate the evidence to the proper count. Most of the evidence relating to count II would have been admissible in a separate trial on count I. L’Allier therefore was not prejudiced by the district court’s denial of his motion for severance. See United States v. Garver, 809 F.2d 1291, 1298 (7th Cir.1987) (defendants not prejudiced by denial of motion for severance where evidence would have been admissible in separate trials). In addition, the jury was specifically instructed to consider the evidence relating to each count separately and to render a separate verdict on each count. “Our theory of trial relies upon the ability of a jury to follow instructions.” Percival, 756 F.2d at 610 (citing Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954)). We believe that the jury was able to follow the clear limiting instructions given by the district court in this case. We hold therefore that the district court did not abuse its discretion in denying L’Allier’s motion for severance. V. L’Allier’s final argument is that the district court erred when it permitted the government to introduce into evidence several sweatshirts which allegedly belonged to the defendant. L’Allier argues that it was error to admit these sweatshirts because the government was unable to establish a complete chain of custody. Clark and Willink, of the St. Croix Sheriff’s Department, found several sweatshirts when they conducted an inventory search of L’Allier’s car. The sweatshirts and the car were released to the defendant’s brother, Randy L’Allier, on July 10, 1985. An FBI agent retrieved three sweatshirts from Randy’s home (although not from Randy personally) on July 16th, but the government cannot conclusively demonstrate that the sweatshirts that were recovered were the same ones that were released to Randy on July 10th. There is therefore a break in the chain of custody. A district court has “broad discretion to determine the admissibility of evidence.” United States v. Hattaway, 740 F.2d 1419, 1424 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984). We will not disturb a district court’s evidentia-ry ruling unless there is a clear showing of abuse of discretion. United States v. Wheeler, 800 F.2d 100, 106 (7th Cir.1986). The district court admitted the sweatshirts, but specifically limited the government to arguing only the inference that the sweatshirts the FBI agent retrieved from Randy L'Allier’s home were the same ones the St. Croix Sheriff’s Department found in the defendant’s car. The district court was correct in concluding that “any discrepancies in the chain of custody go the weight of the evidence, not its admissibility.” United States v. Shackleford, 738 F.2d 776, 785 (7th Cir.1984). We hold that the court did not abuse its discretion in admitting the sweatshirts into evidence notwithstanding the break in the chain of custody. VI. In conclusion, we hold that: (1) the government’s sixteen month pre-indictment delay, although lengthy and unexplained, did not violate L’Allier’s fifth amendment right to due process because he failed to demonstrate actual and substantial prejudice to his defense as a result of the delay; (2) the district court did not abuse its discretion in permitting Rick Iverson to identify L’Allier in court; (3) counts I and II of the indictment were properly joined and the district court did not abuse its discretion by denying L’Allier’s motion to sever these offenses; and (4) the district court did not err in permitting the introduction of several sweatshirts into evidence notwithstanding a break in the chain of custody. We therefore affirm L’Allier's conviction in all respects. . To create “bait" bills the government simply records the serial number of each bill. The bait bills are given to the bank and the tellers are instructed to dispense them in the event of a robbery. When the bills are recovered from a suspect, the government can trace them to the bank by comparing their serial numbers with the list of prerecorded serial numbers. . The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. Marion, 404 U.S. at 323, 92 S.Ct. at 465 (quoting Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970)). . The applicable statute of limitations is set forth in 18 U.S.C. § 3282 which provides: Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. L’Allier was indicted two years after the first robbery, well within the five year statute of limitations. . The test for determining whether, based on the totality of the circumstances, an identification is reliable notwithstanding an impermissi-bly suggestive confrontation procedure was set forth in Biggers. The Court in Biggers stated that: [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382. . In fact, as Iverson testified on cross-examination, he was unable to make a positive identification of L’Allier from the photo display. Iver-son’s inability to identify L’Allier from the photo line-up is relevant to the credibility of his in-court identification, not to its admissibility. Briggs, 700 F.2d at 413. The credibility of Iver-son’s identification was thus a question of fact properly left to the jury’s consideration. . Our conclusion that the photo line-up was not impermissibly suggestive is further supported by the fact that Iverson originally pointed to another photograph and indicated that the individual had a nose similar to the person he had seen outside the bank. Iverson then tentatively identified L’Allier’s photograph, but he indicated that he needed to see the individual in person in order to make a positive identification. Iverson clearly testified to these facts on cross-examination. . Rule 14 provides: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice re-quires____ Fed.R.Crim.P. 14 (emphasis added). Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_threejudgefdc	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. UPHAM et al. v. SEAMON et al. No. 81-1724. Decided April 1, 1982 Per Curiam. After the 1980 census, Texas’ congressional delegation increased from 24 to 27 members. A reapportionment plan, Senate Bill No. 1 (SB1), was enacted on August 14, 1981, and then submitted to the Attorney General for preclearance. While it was pending before him, suit was filed in the Federal District Court for the Eastern District of Texas challenging the constitutionality of SB1 and its validity under §2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973. A three-judge court was empaneled, held a hearing, and delayed any further action until after the Attorney General acted. On January 29, 1982, the Attorney General entered an objection to SB1. Specifically, he objected to the lines drawn for two contiguous districts in south Texas, Districts 15 and 27. He stated that the State “has satisfied its burden of demonstrating that the submitted plan is nondiscriminatory in purpose and effect” with respect to the other 25 districts. In the face of this objection, which made SB1 unenforceable, and the obvious unconstitutionality of the prior apportionment plan, the court ordered the parties to provide written submissions along with maps, plats, and other data to aid the court in reaching a court-ordered reapportionment plan. A hearing was held on February 9. The court then proceeded to resolve the Attorney General’s objection to Districts 15 and 27. 536 F. Supp. 931. All other districts of the court’s plan, except for those in Dallas County, were identical to those of SB1. The court devised its own districts for Dallas County, and it is that part of the District Court’s judgment that is on appeal here. A stay and expedited consideration are requested. Judge Sam Johnson and Judge Justice wrote separately, but agreed that SBl’s plan for Dallas County could not be implemented. Judge Justice alone determined that the SB1 plan for Dallas County was unconstitutional. In Judge Johnson’s view, since SB1 was a nullity, the entire plan had to be a court-ordered plan which must conform to § 5, 42 U. S. C. § 1973c, standards, including the “no retrogression rule” of Beer v. United States, 425 U. S. 130 (1976). However, he thought that in two respects the standards applicable to court-ordered plans were stricter than those that must be observed by a legislature: population equality and racial fairness. Judicial application of the no retrogression standard, in his view, is limited to consideration of purely numerical factors; unlike a legislature, a court cannot consider the “innumerable political factors that may affect a minority group’s access to the political process.” 536 F. Supp., at 948. Although a court must defer to legislative judgments on reapportionment as much as possible, it is forbidden to do so when the legislative plan would not meet the special standards of population equality and racial fairness that are applicable to court-ordered plans. SBl’s treatment of Dallas County failed to meet the test of racial fairness for a court-ordered plan. Under SB1, minority strength in District 5, in Dallas County, would have gone from 29.1 percent to 12.1 percent. Apparently, the minority votes had been shifted to District 24, which increased in minority population from 37.4 percent to 63.8 percent. Judge Johnson reasoned that this change would reduce minority effectiveness in District 5 substantially and would not guarantee a “safe” seat in District 24. This “would result in a severe retrogression in the Dallas County area.” Id., at 957, n. 39. He specifically recognized that SBl’s plans for Dallas County had been formulated in response to the interests expressed by minority voters in creating a “safe” seat. He did not hold this legislative response to be unconstitutional, nor did he criticize it as inconsistent with § 5 as it applied to legislative redistricting. A court, however, could not, in his view, consider the same factors as a legislature. The court, therefore, redrew the boundaries of Districts 5 and 24, and the two adjoining Districts, 3 and 26. Under the court-ordered plan, District 5 would have a minority population of 31.87 percent and District 24 would have 45.7 percent. Appellants, who are Republican Party officials in Texas, contend that the District Court simply substituted its own reapportionment preferences for those of the state legislature and that this is inconsistent with Wise v. Lipscomb, 437 U. S. 535 (1978); McDaniel v. Sanchez, 452 U. S. 130 (1981); and White v. Weiser, 412 U. S. 783 (1973). They argue that in the absence of any objection to the Dallas County districts by the Attorney General, and in the absence of any finding of a constitutional or statutory violation with respect to those districts, a court must defer to the legislative judgments the plans reflect, even under circumstances in which a court order is required to effect an interim legislative apportionment plan. We agree and, therefore, summarily reverse. The relevant principles that govern federal district courts in reapportionment cases are well established: “From the beginning, we have recognized that ‘reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.’ We have adhered to the view that state legislatures have ‘primary jurisdiction’ over legislative reapportionment. . . . Just as a federal district court, in the context of legislative reapportionment, should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, we hold that a district court should similarly honor state policies in the context of congressional reapportionment. In fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor ‘intrude upon state policy any more than necessary.’” White v. Weiser, 412 U. S., at 794-795 (citations omitted). Weiser itself presents a good example of when such an intrusion is not necessary. We held there that the District Court erred when, in choosing between two possible court-ordered plans, it failed to choose that plan which most closely approximated the state-proposed plan. The only limits on judicial deference to state apportionment policy, we held, were the substantive constitutional and statutory standards to which such state plans are subject. Id., at 797. We reached a similar conclusion in Whitcomb v. Chavis, 403 U. S. 124, 160-161 (1971), in which we held that the District Court erred in fashioning a court-ordered plan that rejected state policy choices more than was necessary to meet the specific constitutional violations involved. Indeed, our decision in Whitcomb directly conflicts with the lower court’s order in this case. Specifically, we indicated that the District Court should not have rejected all multimember districts in the State, absent a finding that those multimember districts were unconstitutional. Ibid. We reached this conclusion despite the fact that we had previously held that “when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multimember districts as a general matter.” Connor v. Johnson, 402 U. S. 690, 692 (1971). See also Chapman v. Meier, 420 U. S. 1, 19 (1975) (indicating that court-ordered plans should, in some circumstances, defer to, or respect, a state policy of multimember districting). It is true that this Court has held that court-ordered reapportionment plans are subject in some respects to stricter standards than are plans developed by a state legislature. Wise v. Lipscomb, supra, at 540; Connor v. Finch, 431 U. S. 407, 414 (1977). This stricter standard applies, however, only to remedies required by the nature and scope of the violation: “The remedial powers of an equity court must be adequate to the task, but they are not unlimited.” Whitcomb v. Chavis, supra, at 161. We have never said that the entry of an objection by the Attorney General to any part of a state plan grants a district court the authority to disregard aspects of the legislative plan not objected to by the Attorney General. There may be reasons for rejecting other parts of the State’s proposal, but those reasons must be something other than the limits on the court’s remedial actions. Those limits do not come into play until and unless a remedy is required; whether a remedy is required must be determined on the basis of the substantive legal standards applicable to the State’s submission. Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of “reconciling the requirements of the Constitution with the goals of state political policy.” Connor v. Finch, supra, at 414. An appropriate reconciliation of these two goals can only be reached if the district court’s modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect. Thus, in the absence of a finding that the Dallas County reapportionment plan offended either the Constitution or the Voting Rights Act, the District Court was not free, and certainly was not required, to disregard the political program of the Texas State Legislature. Although the District Court erred, it does not necessarily follow that its plan should not serve as an interim plan governing the forthcoming congressional elections. The filing date for candidates, which was initially postponed by the District Court, has now come and gone. The District Court has also adjusted other dates so that the primary elections scheduled for May 1 may be held. The State of Texas, although it disagrees with the judgment of the District Court with respect to Dallas County, urges that the election process should not now be interrupted and a new schedule adopted, even for Dallas County. It is urged that because the District Court’s plan is only an interim plan and is subject to replacement by the legislature in 1983, the injury to appellants, if any, will not be irreparable. It is true that we have authorized District Courts to order or to permit elections to be held pursuant to apportionment plans that do not in all respects measure up to the legal requirements, even constitutional requirements. See, e. g., Bullock v. Weiser, 404 U. S. 1065 (1972); Whitcomb v. Chavis, 396 U. S. 1055 (1970). Necessity has been the motivating factor in these situations, Because we are not now as familiar as the District Court with the Texas election laws and the legal and practical factors that may bear on whether the primary elections should. be rescheduled, we vacate the District Court judgment and remand the case to that court for further proceedings. See Connor v. Waller, 421 U. S. 656 (1975); Wesberry v. Sanders, 376 U. S. 1, 4 (1964). Having indicated the legal error of the District Court, we leave it to that court in the first instance to determine whether to modify its judgment and reschedule the primary elections for Dallas County or, in spite of its erroneous refusal to adopt the SB1 districts for Dallas County, to allow the election to go forward in accordance with the present schedule. The judgment of the Court shall issue forthwith. So ordered. His objection, however, went to the entire plan, and on February 23, he refused the State’s request that the objection be severed and addressed to only a portion of SB1 (but see n. 7, infra). The existing apportionment plan created only 24, not 27 districts, and the changes in population over the past 10 years had created extreme numerical variations between the districts, which were unconstitutional under the one-man, one-vote rule. Judge Parker dissented from the relevant part of the court order — he would have followed SB1 in Dallas County. The relevant passage of Judge Johnson’s opinion reads as follows: “This Court recognizes that certain minority group members expressed a desire for a ‘safe’ minority district in Dallas County. After consideration of numerous political factors, and substantial legislative battling, the Texas Legislature decided on the configurations in S.B.l .... The legislature was at liberty to engage in such considerations. This Court, in fashioning a nonretrogressive apportionment plan does not have that privilege. It must evaluate the new plan without access to questions regarding the ability of separate minority groups to form coalitions or other political concerns. ... It is not before this Court to determine whether considerations valid in the legislative context justify simply increasing swing-vote influence in one district at the expense of the influence previously enjoyed in a neighboring district. This Court determines, however, that, in the context of a court-ordered apportionment plan, such a trade-off would result in a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 536 F. Supp., at 957, n. 9. Appellants are supported in this appeal by the State of Texas. While Texas agrees with them on the merits of this case and supports a summary reversal of the District Court decision, it asks that this Court delay any remedial action until after the 1982 elections. In other words, Texas chai-lenges the merits of the District Court decision, but contends that it would be too disruptive and expensive to attempt to alter the 1982 elections at this point. Appellants propose two other arguments. First, under Texas law an invalid statutory provision is severable. Therefore, the fact that the Attorney General objected to the validity of SBl’s district lines for 2 districts did not invalidate the plans for the other 25 districts. Second, the “stricter standards” applicable to court-ordered plans apply only to the use of multimember districts and population variations beyond a de minimis amount. In particular, this “stricter standard” does not apply to plans that have already been precleared by the Attorney General. In light of our disposition of the case, we need not reach either of these arguments. The Attorney General took the same position in declining to grant preclearance to that portion of SB1 that he did not find objectionable: “Since the federal district courts will be acting in the stead of the Legislature we believe that the courts should attempt to effectuate the legislative judgment to the extent possible and modify the Legislature’s plans only as necessary to meet the concerns raised in the objection letters. In other words, we believe the court should make such modifications to the plans as would normally be made by the Legislature if it were in session.” App. to Juris. Statement F-3 (letter of Wm. Bradford Reynolds, Assistant Attorney General, to Texas Secretary of State). In this Court, the Solicitor General takes a slightly different position. He contends that the question of what weight a district court should give to a legislative plan that is partially objected to by the Attorney General is substantial and, therefore, merits plenary consideration by this Court. Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:
sc_petitionerstate	06	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. CALIFORNIA v. RAMOS No. 81-1893. Argued February 22, 1983 — Decided July 6, 1983 Harley D. Mayfield, Deputy Attorney General of California, argued the cause for petitioner. With him on the brief were George Deukmejian, Attorney General, Robert Phili-bosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Jay M. Bloom, Deputy Attorney General. Ezra Hendon, by appointment of the Court, 459 U. S. 964, argued the cause and filed a brief for respondent. Justice O’Connor delivered the opinion of the Court. This case requires us to consider the constitutionality under the Eighth and Fourteenth Amendments of instructing a capital sentencing jury regarding the Governor’s power to commute a sentence of life without possibility of parole. Finding no constitutional defect in the instruction, we reverse the decision of the Supreme Court of California and remand for further proceedings. I On the night of June 2, 1979, respondent Marcelino Ramos participated in the robbery of a fast-food restaurant where he was employed as a janitor. As respondent’s codefendant placed a food order, respondent entered the restaurant, went behind the front counter into the work area ostensibly for the purpose of checking his work schedule, and emerged with a gun. Respondent directed the two employees working that night into the restaurant’s walk-in refrigerator and ordered them to face the back wall. Respondent entered and emerged from the refrigerator several times, inquiring at one point about the keys to the restaurant safe. When he entered for the last time, he instructed the two employees to kneel on the floor of the refrigerator, to remove their hats, and to pray. Respondent struck both on the head and then shot them, wounding one and killing the other. Respondent was charged with robbery, attempted murder, and first-degree murder. Defense counsel presented no evidence at the guilt phase of respondent’s trial, and the jury returned a verdict of guilt on all counts. Under California law, first-degree murder is punishable by death or life imprisonment without the possibility of parole where an alleged “special circumstance” is found true by the jury at the guilt phase. At the separate penalty phase, respondent presented extensive evidence in an attempt to mitigate punishment. In addition to requiring jury instructions on aggravating and mitigating circumstances, California law requires that the trial judge inform the jury that a sentence of life imprisonment without the possibility of parole may be commuted by the Governor to a sentence that includes the possibility of parole. At the penalty phase of respondent’s trial, the judge delivered the following instruction: “You are instructed that under the State Constitution a Governor is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime. “Under this power a Governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.” Tr. 1189-1190. The jury returned a verdict of death. On appeal the Supreme Court of California affirmed respondent’s conviction but reversed the death sentence, concluding that the Briggs Instruction required by Cal. Penal Code Ann. §190.3 (West Supp. 1983) violated the Federal Constitution. 30 Cal. 3d 553, 639 P. 2d 908 (1982). The court found two constitutional flaws in the instruction. First, it invites the jury to consider factors that are foreign to its task of deciding whether the defendant should live or die. According to the State Supreme Court, instead of assuring that this decision rests on “consideration of the character and record of the individual offender and the circumstances of the particular offense,” Woodson v. North Carolina, 428 U. S. 280, 304 (1976), the instruction focuses the jury’s attention on the Governor’s power to render the defendant eligible for parole if the jury does not vote to execute him and injects an entirely speculative element into the capital sentencing determination. Second, the court concluded that because the instruction does not also inform the jury that the Governor possesses the power to commute a death sentence, it leaves the jury with the mistaken belief that the only way to keep the defendant off the streets is to condemn him to death. Accordingly, the court remanded for a new penalty phase. We granted certiorari, 459 U. S. 821 (1982), and now reverse and remand. II In challenging the constitutionality of the Briggs Instruction, respondent presses upon us the two central arguments advanced by the Supreme Court of California in its decision. He contends (1) that a capital sentencing jury may not constitutionally consider possible commutation, and (2) that the Briggs Instruction unconstitutionally misleads the jury by selectively informing it of the Governor’s power to commute one of its sentencing choices but not the other. Respondent’s first argument raises two related, but distinct concerns— viz., that the power of commutation is so speculative a factor that it injects an unacceptable level of unreliability into the capital sentencing determination, and that consideration of this factor deflects the jury from its constitutionally mandated task of basing the penalty decision on the character of the defendant and the nature of the offense. We address these points in Parts II-B and II-C, infra, and respondent’s second argument in Part III, infra. Before turning to the specific contentions of respondent’s first argument, however, we examine the general principles that have guided this Court’s pronouncements regarding the proper range of considerations for the sentencer in a capital case. A The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination. In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty. In Gregg v. Georgia, 428 U. S. 153 (1976), and its companion cases, the Court reviewed the capital sentencing schemes of five States to determine whether those schemes had cured the constitutional defects identified in Furman v. Georgia, 408 U. S. 238 (1972). In Gregg itself, the joint opinion of Justices Stewart, Powell, and Stevens concluded that the Georgia sentencing scheme met the concerns of Furman by providing a bifurcated proceeding, instruction on the factors to be considered, and meaningful appellate review of each death sentence. 428 U. S., at 189-195. Satisfied that these procedural safeguards “suitably directed and limited” the jury’s discretion “so as to minimize the risk of wholly arbitrary and capricious action,” id., at 189, the joint opinion did not undertake to dictate to the State the particular substantive factors that should be deemed relevant to the capital sentencing decision. Indeed, the joint opinion observed: “It seems clear that the problem [of channeling jury discretion] will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Id., at 192 (emphasis added). See also id., at 176 (“The deference we owe to the decisions of the state legislatures under our federal system... is enhanced where the specification of punishments is concerned, for ‘these are peculiarly questions of legislative policy’”). It would be erroneous to suggest, however, that the Court has imposed no substantive limitations on the particular factors that a capital sentencing jury may consider in determining whether death is appropriate. In Gregg itself the joint opinion suggested that excessively vague sentencing standards might lead to the arbitrary and capricious sentencing patterns condemned in Furman. 428 U. S., at 195, n. 46. Moreover, in Woodson v. North Carolina, 428 U. S. 280 (1976), the plurality concluded that a State must structure its capital sentencing procedure to permit consideration of the individual characteristics of the offender and his crime. This principle of individualization was extended in Lockett v. Ohio, 438 U. S. 586 (1978), where the plurality determined that “the Eighth and Fourteenth Amendments require that the sentencer [in a capital case] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id., at 604 (emphasis in original; footnotes omitted). Finally, in Gardner v. Florida, 430 U. S. 349 (1977), a plurality of the Court held that a death sentence may not be imposed on the basis of a presentence investigation report containing information that the defendant has had no opportunity to explain or deny. Beyond these limitations, as noted above, the Court has deferred to the State’s choice of substantive factors relevant to the penalty determination. In our view, the Briggs Instruction does not run afoul of any of these constraints. B Addressing respondent’s specific arguments, we find unpersuasive the suggestion that the possible commutation of a life sentence must be held constitutionally irrelevant to the sentencing decision and that it is too speculative an element for the jury’s consideration. On this point, we find Jurek v. Texas, 428 U. S. 262 (1976), controlling. The Texas capital sentencing system upheld in Jurek limits capital homicides to intentional and knowing murders committed in five situations. Id., at 268. Once the jury finds the defendant guilty of one of these five categories of murder, the jury must answer three statutory questions. If the jury concludes that the State has proved beyond a reasonable doubt that each question is answered in the affirmative, then the death sentence is imposed. In approving this statutory scheme, the joint opinion in Jurek rejected the contention that the second statutory question — requiring consideration of the defendant’s future dangerousness — was unconstitutionally vague because it involved prediction of human behavior. “It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.... And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” Id., at 274-276 (footnotes omitted). By bringing to the jury’s attention the possibility that the defendant may be returned to society, the Briggs Instruction invites the jury to assess whether the defendant is someone whose probable future behavior makes it undesirable that he be permitted to return to society. Like the challenged factor in Texas’ statutory scheme, then, the Briggs Instruction focuses the jury on the defendant’s probable future dangerousness. The approval in Jurek of explicit consideration of this factor in the capital sentencing decision defeats respondent’s contention that, because of the speculativeness involved, the State of California may not constitutionally permit consideration of commutation. Nor is there any diminution in the reliability of the sentencing decision of the kind condemned in Gardner v. Florida, 430 U. S. 349 (1977). In Gardner, the Court reversed a death sentence that had been imposed in part on the basis of a confidential portion of a presentence investigation report that had not been disclosed to either the defendant or his counsel. Because of the potential that the sentencer might have rested its decision in part on erroneous or inaccurate information that the defendant had no opportunity to explain or deny, the need for reliability in capital sentencing dictated that the death penalty be reversed. Gardner provides no support for respondent. The Briggs Instruction gives the jury accurate information of which both the defendant and his counsel are aware, and it does not preclude the defendant from offering any evidence or argument regarding the Governor’s power to commute a life sentence. c Closely related to, yet distinct from, respondent’s specula-tiveness argument, is the contention that the Briggs Instruction is constitutionally infirm because it deflects the jury’s focus from its central task. Respondent argues that the commutation instruction diverts the jury from undertaking the kind of individualized sentencing determination that, under Woodson v. North Carolina, 428 U. S., at 304, is “a constitutionally indispensable part of the process of inflicting the penalty of death.” As we have already noted, supra, at 1003, as a functional matter the Briggs Instruction focuses the jury’s attention on whether this particular defendant is one whose possible return to society is desirable. In this sense, then, the jury’s deliberation is individualized. The instruction invites the jury to predict not so much what some future Governor might do, but more what the defendant himself might do if released into society. Any contention that injecting this factor into the jury’s deliberations constitutes a departure from the kind of individualized focus required in capital sentencing decisions was implicitly rejected by the decision in Jurek. Indeed, after noting that consideration of the defendant’s future dangerousness was an inquiry common throughout the criminal justice system, the joint opinion of Justices Stewart, Powell, and Stevens observed: “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” 428 U. S., at 276. As with the Texas scheme, the California sentencing system ensures that the jury will have before it information regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition, and physical condition. Cal. Penal Code Ann. § 190.3 (West Supp. 1983). Respondent also relies on Beck v. Alabama, 447 U. S. 625 (1980), as support for his contention that the Briggs Instruction undermines the jury’s responsibility to make an individualized sentencing determination. In Beck the Court held that the jury in a capital case must be permitted to consider a verdict of guilt of a noncapital offense where the evidence would support such a verdict. In disapproving the Alabama statute that precluded giving a lesser included offense charge in capital cases, the Court concluded that the chief flaw of the statute “is that it interjects irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id., at 642. The failure to give a lesser included offense instruction “diverted” the jury in two ways: a jury might convict a defendant of a capital offense because of its belief that he is guilty of some crime, or, given the mandatory nature of the death penalty under Alabama law, the jury might acquit because it does not think that the defendant’s crime warrants death. Id., at 642-643. According to the respondent, the Briggs Instruction, like the removal of the lesser included offense option in Beck, predisposes the jury to act without regard to whether the death penalty is called for on the facts before it. We are unconvinced that the Briggs Instruction constrains the jury’s sentencing choice in the manner condemned in Beck. Restricting the jury in Beck to the two sentencing alternatives — conviction of a capital offense or acquittal — in essence placed artificial alternatives before the jury. The unavailability of the “third option” thereby created the risk of an unwarranted conviction. By contrast, the Briggs Instruction does not limit the jury to two sentencing choices, neither of which may be appropriate. Instead, it places before the jury an additional element to be considered, along with many other factors, in determining which sentence is appropriate under the circumstances of the defendant’s case. More to the point, however, is the fundamental difference between the nature of the guilt/innocence determination at issue in Beck and the nature of the life/death choice at the penalty phase. As noted above, the Court in Beck identified the chief vice of Alabama’s failure to provide a lesser included offense option as deflecting the jury’s attention from “the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id., at 642 (emphasis added). In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar “central issue” from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment. In this sense, the jury’s choice between life and death must be individualized. “But the Constitution does not require the jury to ignore other possible... factors in the process of selecting... those defendants who will actually be sentenced to death.” Zant v. Stephens, 462 U. S. 862, 878 (1983) (footnote omitted). As we have noted, the essential effect of the Briggs Instruction is to inject into the sentencing calculus a consideration akin to the aggravating factor of future dangerousness in the Texas scheme. See supra, at 1003. This element “is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant.” 462 U. S., at 900 (REHNQUIST, J., concurring in judgment). In short, the concern of Beck regarding the risk of an unwarranted conviction is simply not directly translatable to the deliberative process in which the capital jury engages in determining the appropriate penalty, where there is no single determinative issue apart from the general concern that the penalty be tailored to the individual defendant and the offense. Finally, we emphasize that informing the jury of the Governor’s power to commute a sentence of life without possibility of parole was merely an accurate statement of a potential sentencing alternative. To describe the sentence as “life imprisonment without possibility of parole” is simply inaccurate when, under state law, the Governor possesses authority to commute that sentence to a lesser sentence that includes the possibility of parole. The Briggs Instruction thus corrects a misconception and supplies the jury with accurate information for its deliberation in selecting an appropriate sentence. See also n. 18, supra. Having concluded that a capital sentencing jury’s consideration of the Governor’s power to commute a life sentence is not prohibited by the Federal Constitution, we now address respondent’s contention that the Briggs Instruction must be held unconstitutional because it fails to inform jurors also that a death sentence may be commuted. In essence, respondent complains that the Briggs Instruction creates the misleading impression that the jury can prevent the defendant’s return to society only by imposing the death sentence, thus biasing the jury in favor of death. Respondent therefore concludes that “[i]f... commutation is a factor properly to be considered by the jury, then basic principles of fairness require that full disclosure be made with respect to commutation.” Brief for Respondent 35-36. Thus, according to respondent, if the Federal Constitution permits the jury to consider possible commutation of a life sentence, the Federal Constitution requires that the jury also be instructed that a death sentence may be commuted. We find respondent’s argument puzzling. If, as we must assume, respondent’s principal objection is that the impact of the Briggs Instruction is to skew the jury toward imposing death, we fail to see how an instruction on the Governor’s power to commute death sentences as well as life sentences restores the situation to one of “neutrality.” Although such an instruction would be “neutral” in the sense of giving the jury complete and factually accurate information about the commutation power, it would not “balance” the impact of the Briggs Instruction, even assuming, arguendo, that the current instruction has any impermissible skewing effect. Disclosure of the complete nature of the commutation power would not eliminate any skewing in favor of death or increase the reliability of the sentencing choice. A jury concerned about preventing the defendant’s potential return to society will not be any less inclined to vote for the death penalty upon learning that even a death sentence may not have such an effect. In fact, advising jurors that a death verdict is theoretically modifiable, and thus not “final,” may incline them to approach their sentencing decision with less appreciation for the gravity of their choice and for the moral responsibility reposed in them as sentencers. In short, an instruction disclosing the Governor’s power to commute a death sentence may operate to the defendant’s distinct disadvantage. It is precisely this perception that the defendant is prejudiced by an instruction on the possible commutation of a death sentence that led the California Supreme Court in People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33 (1964), to prohibit the giving of such an instruction. Thus, state law at the time of respondent Ramos’ trial precluded the giving of the “other half” of the commutation instruction that respondent now argues is constitutionally required. Moreover, we are not convinced by respondent’s argument that the Briggs Instruction alone impermissibly impels the jury toward voting for the death sentence. Any aggravating factor presented by the prosecution has this impact. As we concluded in Part II, supra, the State is constitutionally entitled to permit juror consideration of the Governor’s power to commute a life sentence. This information is relevant and factually accurate and was properly before the jury. Moreover, the trial judge’s instructions “did not place particular emphasis on the role of [this factor] in the jury’s ultimate decision.” Zant v. Stephens, 462 U. S., at 889; cf. id., at 888-891. <1 In sum, the Briggs Instruction does not violate any of the substantive limitations this Court’s precedents have imposed on the capital sentencing process. It does not preclude individualized sentencing determinations or consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jury’s deliberation. Finally, its failure to inform the jury also of the Governor’s power to commute a death sentence does not render it constitutionally infirm. Therefore, we defer to the State’s identification of the Governor’s power to commute a life sentence as a substantive factor to be presented for the sentencing jury’s consideration. Our conclusion is not intended to override the contrary judgment of state legislatures that capital sentencing juries in their States should not be permitted to consider the Governor’s power to commute a sentence. It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires. We sit as judges, not as legislators, and the wisdom of the decision to permit juror consideration of possible commutation is best left to the States. We hold only that the Eighth and Fourteenth Amendments do not prohibit such an instruction. The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. See Cal. Penal Code Ann. § 190.2 (West Supp. 1983). The alleged special circumstance found true in respondent’s case was commission of the murder during the course of a robbery. § 190.2(a)(17)(i). Respondent offered evidence to show, inter alia, that his adoptive parents had died while he was young, that he then came under the bad influence of his codefendant, that respondent had mild congenital brain damage, a low intelligence quotient, and borderline schizophrenia, that he was under the influence of alcohol and drugs at the time of the offenses, and that he intended only to “graze” the victims when he shot them. The jury “shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances” and “shall impose” a sentence of life without possibility of parole if the mitigating circumstances outweigh the aggravating circumstances. Cal. Penal Code Ann. § 190.3 (West Supp. 1983). Ibid. This instruction, referred to hereinafter as the “Briggs Instruction,” was incorporated into the California Penal Code as a result of a 1978 voter initiative popularly known as the Briggs Initiative. The trial judge gave the instruction over the objection of respondent on the ground that the instruction was mandated by legislation. Tr. 718. In dissent Justice Richardson concluded that the Briggs Instruction was harmless and nonprejudicial because it merely informs jurors of information that is a matter of common knowledge. Further, the instruction is relevant because the issue of parole is injected into the sentencing process by one of the alternative punishments the jury must consider: life imprisonment without possibility of parole. In addition, the dissent concluded that the instruction’s failure also to inform the jury of the Governor’s power to commute a death sentence did not render it constitutionally infirm. In People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33 (1964), the court had held, on the basis of its supervisory powers, that jurors should not be instructed that a death sentence could be commuted because it reduced the jury’s sense of responsibility in imposing a capital sentence. Therefore, the Briggs Instruction should not be struck down because it fails to require an instruction of the type condemned in Morse. The Supreme Court of California also concluded that certain testimony by the defense psychiatrist was inadmissible as a matter of state evidence law. Over defense objection, at the penalty phase the prosecutor had been allowed to elicit on cross-examination of the psychiatrist that respondent was aware of the Governor’s power to commute a life sentence without parole to a lesser sentence that included the possibility of parole. According to the psychiatrist, respondent had indicated that, were he to be released on parole after 10 or 20 years in prison, “he would probably have built up within himself such feelings of anger and frustration that he would attempt to take revenge on anyone involved in the trial, including the district attorney who prosecuted the case, the judge who presided over it, and the jurors who voted to convict him.” 30 Cal. 3d 553, 598, 639 P. 2d 908, 934 (1982) (footnote omitted). The State Supreme Court ruled that the trial court had abused its discretion in admitting this testimony because the prejudice created by admission of the testimony outweighed its probative value. See Cal. Evid. Code Ann. § 352 (West 1966). Respondent argues that this Court should not reach the constitutional issues raised by the State because the above ruling represents a possible adequate and independent state ground for the State Supreme Court’s decision to reverse the death sentence. We find no bar to reaching the federal questions. The State Supreme Court quite clearly rested its reversal of the death sentence solely on the Federal Constitution. 30 Cal. 3d, at 562, 600, 639 P. 2d, at 912, 936. Moreover, with respect to its ruling on the evidentiary question, the court did not determine whether this error warranted reversal of the death penalty. It held only that the testimony “should not be admitted if the penalty phase is retried.” Id., at 598, n. 22, 639 P. 2d at 934, n. 22. Therefore, the adequacy of this ruling to support reversal of the sentence was not addressed by the state court. See Michigan v. Long, post, p. 1032. Of course, on remand from this Court, the state court is free to determine whether as a matter of state law this evi-dentiary error is a sufficient basis for reversing the death sentence. In addition, the Supreme Court of California expressly declined to decide whether the Briggs Instruction independently violates any provisions of the State Constitution. 30 Cal. 3d, at 600, n. 24, 639 P. 2d, at 936, n. 24. As with the evidentiary issue, of course, the state court may address this question on remand. The Supreme Court of California construed the Briggs Instruction as inviting capital sentencing juries to consider the commutation power in its sentencing determination. See id., at 599-600, 639 P. 2d, at 935-936. We view the statute accordingly. See Eddings v. Oklahoma, 455 U. S. 104, 117-118 (1982) (O’Connor, J., concurring); Beck v. Alabama, 447 U. S. 625, 637-638 (1980) (opinion of Stevens, J., joined by Burger, C. J., and Brennan, Stewart, Blackmun, and Powell, JJ.); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (opinion of Burger, C. J., joined by Stewart, Powell, and Stevens, JJ.); Gardner v. Florida, 430 U. S. 349, 357-358 (1977) (opinion of STEVENS, J., joined by Stewart, and Powell, JJ.); id., at 363-364 (White, J., concurring in judgment); Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, supra (plurality opinion); Roberts v. Louisiana, 428 U. S. 325 (1976) (plurality opinion). Moreover, in approving the sentencing schemes of Georgia, Florida, and Texas, the joint opinions of Justices Stewart, Powell, and Stevens did not substitute their views for those of the state legislatures as to the particular substantive factors chosen to narrow the class of defendants eligible for the death penalty. For example, under the Georgia scheme examined in Gregg, at least 1 of 10 specified aggravating circumstances must be found beyond a reasonable doubt before the jury may consider whether death is the appropriate punishment for the individual defendant. 428 U. S., at 164-165. By contrast, under the Texas scheme approved in Júrele v. Texas, supra, the State attempted to limit the category of defendants upon whom the death sentence may be imposed by narrowing capital homicides to intentional and knowing murders committed in five particular situations. See id., at 268. In upholding the Texas scheme, the joint opinion observed: “While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose.” Id., at 270. Cf. Godfrey v. Georgia, 446 U. S. 420 (1980) (reversing death sentence that rested on unconstitutionally broad and vague construction of an aggravating circumstance). “[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson, supra, at 304. See also Gregg v. Georgia, 428 U. S., at 189 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937)). See also Zant v. Stephens, 462 U. S. 862, 879 (1983); id., at 900 (Rehn-QUIST, J., concurring in judgment); Enmund v. Florida, 458 U. S. 782, 798 (1982); id., at 827-828 (O’Connor, J., dissenting); Eddings v. Oklahoma, 455 U. S., at 110-112; id., at 118 (O’Connor, J., concurring); id., at 121-122 (Burger, C. J., dissenting). See also 30 Cal. 3d, at 596, 639 P. 2d, at 933 (“[The Briggs Instruction] injects into the sentencing calculus an entirely irrelevant factor...”); id., at 600, 639 P. 2d, at 935. The questions are: “ ‘(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; “ ‘(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and “ ‘(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’ Art. 37.071(b) (Supp. 1975-1976).” 428 U. S., at 269. This analogy between the matters raised in the jurors’ minds by the Briggs Instruction and the Texas statutory factor of the defendant’s future dangerousness is no “intellectual sleight of hand.” Post, at 1029 (Blackmun, J., dissenting). To avoid this analogy is to ignore the process of thought that the Briggs Instruction inevitably engenders in the jury’s deliberations. To be sure, the Briggs Instruction by its terms may incline their thoughts to the probability that the current or some future Governor might commute the defendant’s sentence. Nevertheless, whatever the jurors’ thoughts on this probability alone, the inextricably linked thought is whether it is desirable that this defendant be released into society. In evaluating this question, the jury will consider the defendant’s potential for reform and whether his probable future behavior counsels against the desirability of his release into society. See also ABA Standards for Criminal Justice 18-2.5(c)(i) (2d ed. 1980) (giving as example of legitimate reason for selecting total confinement fact that “[confinement is necessary in order to protect the public from further serious criminal activity by the defendant”). We also observe that, with respect to the relevance of the information conveyed by the Briggs Instruction, the issue of parole or commutation is presented by the language used to describe one of the jury’s sentencing choices — i. e., life imprisonment without possibility of parole. The State of California reasonably could have concluded that, while jurors are generally aware of the Governor’s power to commute a death sentence, most jurors would not be aware that the Governor also may commute a sentence of life imprisonment without possibility of parole and that they should be so informed to avoid any possible misconception conveyed by the description of the sentencing alternative. In dissent Justice Marshall argues that if a balanced instruction cannot or should not be given, “the solution is not to permit a misleading instruction, but to prohibit altogether any instruction concerning commutation.” Post, at 1017-1018. This observation is incorrect for at least two reasons. First, as discussed below, see n. 27, infra, we do not suggest that there would be any federal constitutional infirmity in giving an instruction concerning the Governor’s power to commute the death sentence. We note only that such comment is prohibited under state law. Second, the Briggs Instruction simply is not misleading. On the contrary, the instruction gives the jury accurate information in that it corrects a misleading description of a sentencing choice available to the jury. Although, as Justice Richardson noted below, 30 Cal. 3d, at 605, 639 P. 2d, at 938, most jurors may have a general awareness of the availability of commutation and parole, the statutory description of one of the sentencing choices as “life imprisonment without possibility of parole” may generate the misleading impression that the Governor could not commute this sentence to one that included the possibility of parole. The Briggs Instruction merely dispels that possible misunderstanding. Further, the defendant may offer evidence or argument regarding the commutation power, and respondent’s counsel addressed the possibility of the Governor’s commutation of a life sentence in his closing argument. Tr. 1161-1162. The Briggs Instruction thereby accomplishes the same result that would occur if, instead of requiring the Briggs Instruction, the State merely described the sentence statutorily as “life imprisonment with possibility of commutation.” Surely, the respondent cannot argue that the Constitution prohibits the State from accurately characterizing its sentencing choices. We note further that respondent does not, and indeed could not, contend that the California sentencing scheme violates the directive of Locket Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC v. WEBER et al. No. 78-432. Argued March 28, 1979 Decided June 27, 1979 Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, and Blackmun, JJ., joined. Blackmun, J., filed a concurring opinion, post, 209. Burger, C. J., filed a dissenting opinion, post, p. 216. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 219. PowELÉ and Stevens, JJ., took no part in the consideration or decision of the cases. Michael H. Oottesman argued the cause for petitioner in No. 78-432. With him on the briefs were Robert M. Weinberg, Elliot Bredhoff, Bernard Kleiman, Carl Frankel, Jerome A. Cooper, John C. Falkenberry, J. Albert Woll, and Laurence Gold. Thompson Powers argued the cause for petitioner in No. 78-435. With him on the briefs was Jane McGrew. Deputy Solicitor General Wallace argued the cause for the United States et al., petitioners in No. 78-436. With him on the briefs were Solicitor General McCree, Assistant Attorney General Days, William C. Bryson, Brian K. Landsberg, and Robert J. Reinstein. Michael R. Fontham argued the cause and filed a brief for respondent Weber in all cases. Together with No. 78-435, Kaiser Aluminum & Chemical Corp. v. Weber et al., and No. 78-436, United States et al. v. Weber et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in all cases were filed by Arthur Kinoy and Doris Peterson for the Affirmative Action Coordinating Center et al.; by E. Richard Larson, Burt Neuborne, and Frank Askin for the American Civil Liberties Union et al.; by Richard B. Sobol, Jerome Cohen, Harrison Combs, John Fillion, Winn Newman, Carole W. Wilson, David Rubin, John Tadlock, James E. Youngdahl, A. L. Zwerdling, and Janet Kohn for the American Federation of State, County and Municipal Employees, AFL-CIO, et al.; by Samuel Yee, Charles Stephen Ralston, and Bill Lann Lee for the Asian American Legal Defense and Education Fund et al.; by James F. Miller and Stephen V. Bomse for the California Fair Employment Practice Commission et al.; by Charles A. Bane, Thomas D. Barr, Norman Redlich, Robert A. Murphy, Richard T. Seymour, Norman J. Chachkin, and Richard S. Kohn for the Lawyers’ Committee for Civil Rights Under Law; by Nathaniel R. Jones for the National Association for the Advancement of Colored People; by Jack Greenberg, James M. Nabrit III, Eric Schnapper, Lowell Johnston, Barry L. Goldstein, Vernon E. Jordan, Jr., and Wiley A. Branton for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., et al.; by Herbert 0. Reid and John W. Davis for the National Medical Association, Inc., et al.; by Robert Her-mann and Evan A. Davis for the National Puerto Rican Coalition et al.; by Jerome Tauber for the National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO; and by Eileen M. Stein and Pat Eames for Patricia Schroeder et ál. Sybille C. Fritzsche filed a brief for the Women’s Caucus, District 31 of the United Steelworkers of America, as amicus curiae in No. 78-432 urging reversal. Briefs of amici curiae urging affirmance in all cases were filed by J. D. Burdick and Ronald E. Yank for the California Correctional Officers Association; by Gerard C. Smetana for the Government Contract Employers Association; by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation; by Leonard F. Walentynowicz for the Polish American Congress et al; and by Wayne T. Elliott for the Southeastern Legal Foundation, Inc. Jack N. Rogers filed a brief for the United States Justice Foundation as amicus curiae in No. 78-432 urging affirmance. Briefs of amici curiae in all cases were filed by Vilma S. Martinez, Morris J. Bailer, and Joel G. Contreras for the American G. I. Forum et al.; by Philip B. Kurland, Larry M. Lavinsky, Arnold Forster, Harry J. Keaton, Meyer Eisenberg, Justin J. Finger, Jeffrey P. Sinensky, Richard A. Weisz, Themis N. Anastos, Dennis Rapps, and Julian E. Kulas for the Anti-Defamation League of B’nai B’rith et al.; by John W. Finley, Jr., Michael' Blinick, Deyan R. Brashich, and Eugene V. Rostov) for the Committee on Academic Nondiscrimination and Integrity; by Kenneth C. McGuiness, Robert E. Williams, and Douglas S. McDowell for the Equal Employment Advisory Council; by Mark B. Bigelow for the National Coordinating Committee for Trade Union Action and Democracy; by Philips B. Patton for the Pacific Civil Liberties League; by Frank J. Donner for the United Electrical, Radio and Machine Workers of America; by Paul D. Kamenar for the Washington Legal Foundation; and by Gloria R. Allred for the Women’s Equal Rights Legal Defense and Education Fund. Burt Pines and Cecil W. Marr filed a brief for the city of Los Angeles as amicus curiae in No. 78-435. Mr. Justice Brennan delivered the opinion of the Court. Challenged here is the legality of an affirmative action plan- — collectively bargained by an employer and a union— that reserves for black employees 50% of the openings in an in-plant craft-training program until the percentage of black craftworkers in the plant is commensurate with the percentage of blacks in the local labor force. The question for decision is whether Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories. We hold that Title VII does not prohibit such race-conscious affirmative action plans. I In 1974, petitioner United Steelworkers of America (USWA) and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser) entered into a master collective-bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement contained, inter alia, an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser’s then almost exclusively white craftwork forces. Black craft-hiring goals were set for each Kaiser plant equal to the percentage of blacks in the respective local labor forces. To enable plants to meet these goals, on-the-job training programs were established to teach unskilled production workers — black and white — -the skills necessary to become craft-workers. The plan reserved for black employees 50% of the openings in these newly created in-plant training programs. This case arose from the operation of the plan at Kaiser’s plant in Gramercy, La. Until 1974, Kaiser hired as craft-workers for that plant only persons who had had prior craft experience. Because blacks had long been excluded from craft unions, few were able to present such credentials. As a consequence, prior to 1974 only 1.83% (5 out of 273) of the skilled craftworkers at the Gramercy plant were black, even though the work force in the Gramercy area was approximately 39% black. Pursuant to the national agreement Kaiser altered its craft-hiring practice in the Gramercy plant. Rather than hiring already trained outsiders, Kaiser established a training program to train its production workers to fill craft openings. Selection of craft trainees was made on the basis of seniority, with the proviso that at least 50% of the new trainees were to be black until the percentage of black skilled craftworkers in the Gramercy plant approximated the percentage of blacks in the local labor force. See 415 F. Supp. 761, 764. During 1974, the first year of the operation of the Kaiser-USWA affirmative action plan, 13 craft trainees were selected from Gramercy’s production work force. Of these, seven were black and six white. The most senior black selected into the program had less seniority than several white production workers whose bids for admission were, rejected. Thereafter one of those white production workers, respondent Brian Weber (hereafter respondent), instituted this class action in the United States District Court for the Eastern District of Louisiana. The complaint alleged that the filling of craft trainee positions at the Gramercy plant pursuant to the affirmative action program had resulted in junior black employees’ receiving training in preference to senior white employees, thus discriminating against respondent and other similarly situated white employees in violation of §§703 (a) and (d) of Title VII. The District Court held that the plan violated Title VII, entered a judgment in favor of the plaintiff class, and granted a permanent injunction prohibiting Kaiser and the USWA “from denying plaintiffs, Brian F. Weber and all other members of the class, access to on-the-job training programs on the basis of race.” App.171. A divided panel of the Court of Appeals for the Fifth Circuit affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment. 563 F. 2d 216 (1977). We granted certiorari. 439 U. S. 1045 (1978). We reverse. II We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Fourteenth Amendment. Further, since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with what Title VII requires or with what a court might order to remedy a past proved violation of the Act. The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan. That question was expressly left open in McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 281 n. 8 (1976), which held, in a case not involving affirmative action, that Title YII protects whites as well as blacks from certain forms of racial discrimination. Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent’s argument rests upon a literal interpretation of §§ 703 (a) and (d) of the Act. Those sections make it unlawful to “discriminate . . . because of . . . race” in hiring and in the selection of apprentices for- training programs. Since, the argument runs, McDonald v. Santa Fe Trail Transp. Co., supra, settled that Title YII forbids discrimination against whites as well as blacks, and since the Kaiser-USWA affirmative action plan operates to discriminate against white employees solely because they are white, it follows that the Kaiser-USWA plan violates Title VII. Respondent’s argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. In this context respondent’s reliance upon a literal construction of §§ 703 (a) and (d) and upon McDonald is misplaced. See McDonald v. Santa Fe Trail Transp. Co., supra, at 281 n. 8. It is a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U. S. 457, 459 (1892). The prohibition against racial discrimination in §§ 703 (a) and (d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose. See Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976); National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 620 (1967); United States v. American Trucking Assns., 310 U. S. 534, 543-544 (1940). Examination of those sources makes clear that an interpretation of the sections that forbade all race-conscious affirmative action would “bring about an end completely at variance with the purpose of the statute” and must be rejected. United States v. Public Utilities Comm’n, 345 U. S. 295, 315 (1953). See Johansen v. United States, 343 U. S. 427, 431 (1952); Longshoremen v. Juneau Spruce Corp., 342 U. S. 237, 243 (1952); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1907). Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with “the plight of the Negro in our economy.” 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey) . Before 1964, blacks were largely relegated to “unskilled and semi-skilled jobs.” Ibid, (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 7379-7380 (remarks of Sen. Kennedy). Because of automation the number of such jobs was rapidly decreasing. See id., at 6548 (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark). As a consequence, “the relative position of the Negro worker [was] steadily worsening. In 1947 the nonwhite unemployment rate was only 64 percent higher than the white rate; in 1962 it was 124 percent higher.” Id., at 6547 (remarks of Sen. Humphrey). See also id., at 7204 (remarks of Sen. Clark). Congress considered this a serious social problem. As Senator Clark told the Senate: “The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasons why the bill should pass.” Id., at 7220. Congress feared that the goals of the Civil Rights Act— the integration of blacks into the mainstream of American society — could not be achieved unless this trend were reversed. And Congress recognized that that would not be possible unless blacks were able to secure jobs “which have a future.” Id., at 7204 (remarks of Sen. Clark). See also id., at 7379-7380 (remarks of Sen. Kennedy). As Senator Humphrey explained to the Senate: “What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? What good does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negro child be motivated to take full advantage of integrated educational facilities if he has no hope of getting a job where he can use that education?” Id., at 6547. “Without a job, one cannot afford public convenience and accommodations. Income from employment may be necessary to further a man’s education, or that of his children. If his children have no hope of getting a good job, what will motivate them to take advantage of educational opportunities?” Id., at 6552. These remarks echoed President Kennedy’s original message to Congress upon the introduction of the Civil Rights Act in 1963. “There is little value in a Negro’s obtaining the right to be admitted to hotels and restaurants if he has no cash in his pocket and no job.” 109 Cong. Rec. 11159. Accordingly, it was clear to Congress that “[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them,” 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey), and it was to this problem that Title'VII’s prohibition against racial discrimination in employment was primarily addressed. It plainly appears from the House Report accompanying the Civil Rights Act that Congress did not intend wholly to prohibit private and voluntary affirmative action efforts as one method of solving this problem. The Report provides: “No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination." H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963). (Emphasis supplied.) Given this legislative history, we cannot agree with respondent that Congress intended to prohibit the private sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. The very statutory words intended as a spur or catalyst to cause “employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history,” Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges. It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long,” 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy. Our conclusion is further reinforced by examination of the language and legislative history of § 703 (j) of Title VII. Opponents of Title VII raised two related arguments against the bill. First, they argued that the Act would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to racial minorities in order to integrate. Second, they argued that employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by the Act. See 110 Cong. Rec. 8618-8619 (1964) (remarks of Sen. Sparkman). Had Congress meant to prohibit all race-conscious affirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII would not require or permit racially preferential integration efforts. But Congress did not choose such a course. Rather, Congress added § 703 (j) which addresses only the first objection. The section provides that nothing contained in Title VII “shall be interpreted to require any employer ... to grant preferential treatment... to any group because of the race ... of such . . . group on account of” a de jacto racial imbalance in the employer’s work force. The section does not state that “nothing in Title VII shall be interpreted to permit” voluntary affirmative efforts to correct racial imbalances. The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action. The reasons for this choice are evident from the legislative record. Title VII could not have been enacted into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business. Those legislators demanded as a price for their support that “management prerogatives, and union freedoms ... be left undisturbed to the greatest extent possible.” H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Section 703 (j) was proposed by Senator Dirksen to allay any fears that the Act might be interpreted in such a way as to upset this compromise. The section was designed to prevent § 703 of Title VII from being interpreted in such a way as to lead to undue “Federal Government interference with private businesses because of some Federal employee’s ideas about racial balance or racial imbalance.” 110 Cong. Rec. 14314 (1964) (remarks of Sen. Miller). See also id., at 9881 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at 11471 (remarks of Sen. Javits); id., at 12817 (remarks of Sen. Dirksen). Clearly, a prohibition against all voluntary, race-conscious, affirmative action efforts would disserve these ends. Such a prohibition would augment the powers of the Federal Government and diminish traditional management prerogatives while at the same time impeding attainment of the ultimate statutory goals. In view of this legislative history and in view of Congress’ desire to avoid undue federal regulation of private businesses, use of the word “require” rather than the phrase “require or permit” in § 703 (j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action. We therefore hold that Title VIPs prohibition in §§ 703 (a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans. Ill We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were-structured to “open employment opportunities for Negroes in occupations which have been traditionally closed to them.” 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey). At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976). Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximates the percentage of blacks in the local labor force. See 415 F. Supp., at 763. We conclude, therefore, that the adoption of the Kaiser-USWA plan for the Gramercy plant falls within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories. Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is Reversed. Mr. Justice Powell and Mr. Justice Stevens took no part in the consideration or decision of these cases. Judicial findings of exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper subject for judicial notice. See, e. g., United States v. Elevator Constructors, 538 F. 2d 1012 (CA3 1976); Associated General Contractors of Massachusetts v. Altschuler, 490 F. 2d 9 (CA1 1973); Southern Illinois Builders Assn. v. Ogilvie, 471 F. 2d 680 (CA7 1972); Contractors Assn, of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159 (CA3 1971); Insulators & Asbestos Workers v. Vogler, 407 F. 2d 1047 (CA5 1969); Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp. 1108 (ND Ala. 1972), aff’d without opinion, 476 F. 2d 1287 (CA5 1973). See also U. S. Commission on Civil Rights, The Challenge Ahead: Equal Opportunity in Referral Unions 58-94 (1976) (summarizing judicial findings of discrimination by craft unions) ; G. Myrdal, An American Dilemma 1079-1124 (1944); F. Marshall & V. Briggs, The Negro and Apprenticeship (1967); S. Spero & A. Harris, The Black Worker (1931); U. S. Commission on Civil Rights, Employment 97 (1961); State Advisory Committees, U. S. Commission on Civil Rights, 50 States Report 209 (1961); Marshall, The Negro in Southern Unions, in The Negro and the American Labor Movement 145 (J. Jacobson ed. 1968); App. 63, 104. Section 703 (a), 78 Stat. 255, as amended, 86 Stat. 109, 42 U. S. C. § 2000e-2 (a), provides: “(a) ... It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.'' Section 703 (d), 78 Stat. 256, 42 U. S. C. § 2000e-2 (d), provides: “It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.'' The problem that Congress addressed in 1964 remains with us. In 1962, the nonwhite unemployment rate was 124% higher than the white rate. See 110 Cong. Rec. 6547 (1964) (remarks of Sen. Humphrey). In 1978, the black unemployment rate was 129% higher. See Monthly Labor Review, U. S. Department of Labor, Bureau of Labor Statistics 78 (Mar. 1979). Section 703 (j) of Title VII, 78 Stat. 257, 42 U. S. C. §2000e-2 (j), provides: “Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religiofi sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.” Section 703 (j) speaks to substantive liability under Title VII, but it does not preclude courts from considering racial imbalance as evidence of a Title VII violation. See Teamsters v. United States, 431 U. S. 324, 339-340, n. 20 (1977). Remedies for substantive violations are governed by § 706 (g), 42 U. S. C. § 2000e-5 (g). Title VI of the Civil Rights Act of 1964, considered in University of California Regents v. Bakke, 438 U. S. 265 (1978), contains no provision comparable to §703 (j). This is because Title VI was an exercise of federal power over a matter in which the Federal Government was already directly involved: the prohibitions against race-based conduct contained in Title VI governed “program[s] or activities] receiving Federal financial assistance.” 42 U. S. C. § 2000d. Congress was legislating to assure federal funds would not be used in an improper manner. Title VII, by contrast, was enacted pursuant to the commerce power to regulate purely private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments. Title VII and Title VI, therefore, cannot be read in pari materia. See 110 Cong. Rec. 8315 (1964) (remarks of Sen. Cooper). See also id., at 11615 (remarks of Sen. Cooper). Respondent argues that our construction of § 703 conflicts with various remarks in the legislative record. See, e. g., 110 Cong. Rec. 7213 (1964) (Sens. Clark and Case); id., at 7218 (Sens. Clark and Case); id., at 6549 (Sen. Humphrey); id., at 8921 (Sen. Williams). We do not agree. In Senator Humphrey’s words, these comments were intended as assurances that Title VII would not allow establishment of systems “to maintain racial balance in employment.” Id., at 11848 (emphasis added). They were not addressed to temporary, voluntary, affirmative action measures undertaken to eliminate manifest racial imbalance in traditionally segregated job categories. Moreover, the comments referred to by respondent all preceded the adoption of §703 (j), 42 U. S. C. § 2000e-2 (j). After § 703 (j) was adopted, congressional comments were all to the effect that employers would not be required to institute preferential quotas to avoid Title VII liability, see, e. g., 110 Cong. Rec. 12819 (1964) (remarks of Sen. Dirksen); id., at 13079-13080 (remarks of Sen. Clark); id., at 15876 (remarks of Rep. Lindsay). There was no suggestion after the adoption of § 703 (j) that wholly voluntary, race-conscious, affirmative action efforts would in themselves constitute a violation of Title VII. On the contrary, as Representative MacGregor told the House shortly before the final vote on Title VII: “Important as the scope and extent of this bill is, it is also vitally important that all Americans understand what this bill does not cover. “Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People complain about . . . preferential treatment or quotas in employment. There is a mistaken belief that Congress is legislating in these areas in this bill. When we drafted this bill we excluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental level closer to the American people and by communities and individuals themselves.” 110 Cong. Rec. 15893 (1964). See n. 1, supra. This is not to suggest that the freedom of an employer to undertake race-conscious affirmative action efforts depends on whether or not his effort is motivated by fear of liability under Title VII. Our disposition makes unnecessary consideration of petitioners’ argument that their plan was justified because they feared that black employees would bring suit under Title VII if they did not adopt an affirmative action plan. Nor need we consider petitioners’ contention that their affirmative action plan represented an attempt -to comply with Exec. Order No. 11246, 3 CFR 339 (1964-1965 Comp.). Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Paul William LITTLEFIELD, Appellant, v. FORT DODGE MESSENGER, a newspaper published daily by Messenger Printing Company, a division of The Ogden Newspapers, Inc., a corporation, and Mike Glover, Appellees. No. 79-1215. United States Court of Appeals, Eighth Circuit. Submitted Oct. 8, 1979. Decided Jan. 2, 1980. Certiorari Denied March 24, 1980. See 100 S.Ct. 1342. Paul William Littlefield, pro se. Herbert R. Bennett, Bennett, Beisser & Wilke, Fort Dodge, Iowa, for appellees. Before LAY, HEANEY and HENLEY, Circuit Judges. HEANEY, Circuit Judge. Paul Littlefield appeals from the dismissal of his libel complaint by the court below. We affirm. On August 6, 1973, in the Fayetteville Circuit Court for the State of Kentucky, Littlefield, a lawyer, pled guilty to the misdemeanor of attempting to commit a felony. He was placed on three years probation which was conditioned in part on his forsaking the practice of law for the duration of the probation. A little over a year later, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association reported to the Iowa Supreme Court that Littlefield was practicing law in Iowa in violation of his Kentucky probation. On December 16, 1974, notice was issued by that court advising Littlefield as follows: “[Sjatisfactory evidence has been received by this Court of your conviction of a crime. Said evidence being you were on or about August 6, 1973 convicted upon your plea of guilty to a charge of attempting to commit a felony[.]” The notice further informed him of a hearing concerning his temporary suspension from the practice of law. In reporting on this chain of events, the Fort Dodge Messenger ran a front-page article entitled “Set hearing on license suspension.” The eleventh paragraph of that article misquoted the above cited notice (which it called an order) as follows: “The order, filed by the court Monday states that ‘satisfactory evidence has been received of your (Littlefield’s) pleading guilty of a felony [.]’” (Emphasis added.) The italicized portion should have read “of a crime.” It is this misquotation that Littlefield characterizes as libelous. The law of libel involves the accommodation of federal constitutional interests in free speech and a robust press with state interests in protecting the reputations of its citizens from defamatory falsehoods. In recent years, the Supreme Court has on several occasions described the contours of that accommodation. See Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As a result, distinctions between “public officials” or “public figures” and “private individuals” have assumed critical importance. Public officials or figures can recover damages caused by defamatory falsehoods from media defendants only if they can demonstrate actual malice — i. e., that the publication was made “with knowledge of [the statement’s] falsity or with reckless disregard for the truth.” Gertz v. Welch, supra, 418 U.S. at 342, 94 S.Ct. at 3008. States may permit private individuals to recover damages from media defendants in accordance with a less stringent standard of culpability, so long as state law does “not impose liability without fault.” Id at 347, 94 S.Ct. 2997. While the line between public figures and private persons is not always clear, the Supreme Court’s decisions in Gertz and Firestone offer guidance. In Gertz, an attorney representing the family of a youth killed by a Chicago police officer complained of an allegedly defamatory article published about him in American Opinion, “a monthly outlet for the views of the John Birch Society.” Gertz v. Welch, supra at 325, 94 S.Ct. at 3000. In determining what level of constitutional protection should be afforded this article, the Supreme Court rejected the position advanced by a plurality in Rosenbloom v. Metromedia, supra, that the inquiry should focus on whether the article involved a topic of “public or general interest.” Gertz v. Welch, supra, 418 U.S. at 346, 94 S.Ct. 2997. Rather, in recognition of the state interest in “the compensation of individuals for the harm inflicted on them by defamatory falsehood,” id. at 341, 94 S.Ct. at 3008, the Court focused on “the status of the person defamed.” Id. at 333, 94 S.Ct. at 3004. It drew a line between public figures and private individuals, noting that public figures have greater ability to contradict falsehoods through self-help, id. at 344, 94 S.Ct. 2997, and that public figures are assumed to have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” Id. at 345, 94 S.Ct. at 3010. In Firestone, Mary Alice Firestone alleged that she had been defamed by a Time magazine squib reporting on the Florida court proceedings in which she was divorced from her husband, Russell Firestone, “the scion of one of America’s wealthier industrial families.” Time, Inc. v. Firestone, supra, 424 U.S. at 450, 96 S.Ct. at 963. The Court rejected two arguments proffered in support of the actual malice standard. First, it held that Ms. Firestone was not a public figure because she “did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach Society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Id. at 453, 96 S.Ct. at 965. Her “voluntary” resort to court and even the press conferences she held during the divorce proceedings were not attempts to influence the resolution of any public controversy. Id. at n. 3, 96 S.Ct. 958. Second, the Court rejected the argument that coverage of judicial proceedings is, per se, sufficient to warrant invocation of the actual malice standard. In reaffirming Gertz’s rejection of the “public or general interest” standard, it emphasized that the focus remains on the status of the person defamed rather than the issue under discussion. It noted that while participants in some litigation may be legitimate “public figures,” either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. Id. at 457, 96 S.Ct. at 966-67. We turn now to the case before us. The district court, in dismissing Littlefield’s complaint, concluded that he was a public figure for the limited issue of his bar discipline proceedings. In so holding, the court found a voluntariness in Littlefield’s actions that was absent in Gertz and Firestone. [Littlefield] is unlike Gertz and Firestone in that he was drawn into a public forum and debate as a result of his purposeful act of practicing law in Iowa in direct contravention of his probation. Littlefield v. Fort Dodge Messenger et al., 481 F.Supp. 919, 922 (D.N.D.Iowa 1978). The district court also noted that the substantial public interest in bar disciplinary proceedings was an additional factor that .may be relevant, in finding Littlefield to be a public figure. Id. at 922. The court applied the public figure standard, and concluded that actual malice had not been proven. Id. at 920. Finally, it noted that “even if [Littlefield] were found to be a private person, his utter failure to prove actual injury or damages of any kind would bar recovery.” Id. at 923 (footnote and citation deleted). Our analysis differs in part from that of the district court since we cannot agree that Littlefield is a public figure. We fail to see anything in Littlefield’s status indicating that he has ready access to effective means of self-help or that he has voluntarily assumed the risks of public exposure by thrusting himself into a public controversy with a view toward influencing its resolution. While it is true that he “voluntarily” practiced law in violation of his probation, there is no indication that he did so out of a desire to influence any public controversy. Rather, his voluntary action is akin to that of Ms. Firestone’s in her petitioning a court for separate maintenance from her husband. Although the issue in which Littlefield became involved was of great public interest, he like the “majority” of litigants, was “drawn into a public forum largely against [his] will in order * * * to defend [himself] against actions brought by the State.” Time, Inc. v. Firestone, supra, 424 U.S. at 457, 96 S.Ct. at 967. Furthermore, the public’s interest should not be considered in making the public figure/private individual determination. After Gertz and Firestone, the status of the person allegedly defamed is the controlling factor. Although we find Littlefield to be a private individual for the purposes of this libel action, we agree with the district court that he has failed to prove damages. Gertz held that “States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz v. Welch, supra, 418 U.S. at 349, 94 S.Ct. at 3011. Only actual damages may be compensated on a showing of lesser fault. Though actual damages could include “impairment of reputation * * *, personal humiliation, and mental anguish and suffering,” id. at 350, 94 S.Ct. at 3012, Littlefield’s only evidence of damage concerned his dismissal from employment. This evidence was inadequate since it consisted solely of Little-field’s testimony that he was dismissed from his employment with the federal government in Brentwood, Missouri, after his supervisor made a trip to Fort Dodge, Iowa, where he learned of Littlefield’s disbarment. Littlefield failed to prove either (1) that his supervisor ever believed him to be a felon, or (2) that such belief, rather than knowledge of his disbarment, was the motivating factor in his termination. Moreover, Littlefield failed to prove any link between the article of which he complains, published in 1974, and his supervi- . sor’s 1976 discovery of his disbarment. Thus, Littlefield failed to prove any actual damage resulting from the article. Littlefield raises two ancillary contentions. The first is that the district court erred in not granting his request for a jury trial. Littlefield never made a written demand for a jury trial as required by Rule 38(b), Fed.R.Civ.P. This failure constitutes a waiver of a trial by jury. Rule 38(d), Fed.R.Civ.P. He now contends that the district court abused its discretion in failing to grant a jury trial when a belated request was made for one at the pretrial conference. See Rule 39(b), Fed.R.Civ.P. While we agree that courts “ought to approach each application under Rule 39(b) with an open mind,” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2334, at 116 (1971), and that jury trials ought to be liberally granted when no prejudice results, we do not find the denial here to be an abuse of the district court’s discretion. Littlefield offers no justification for the failure to make an appropriate demand other than inexperience, and he points to no prejudice resulting from denial. Furthermore, the record shows that Littlefield engaged in a pattern of conduct apparently intended to delay trial. Granting his request for a trial by jury at the pretrial conference stage would have further delayed final disposition of the matter. In these circumstances, denial of the request was within the bounds of the discretion of the trial court. Second, Littlefield contends that the district court erred in failing to decide whether Littlefield’s right to privacy had been invaded. He contends that his disciplinary proceedings were confidential under Iowa Sup.Ct.R. 118.7 and, therefore, that the Fort Dodge Messenger invaded his privacy by publishing its article relating to those proceedings. It is clear, however, that the rule on which Littlefield relies governs only the actions of the Iowa bar. It does not purport to govern the actions of the press. If so, it would constitute a constitutionally suspect prior restraint on publication. For the reasons set forth in this opinion, the order of the district court is affirmed. . United States District Court for the Northern District of Iowa, Central Division. . Littlefield also alleges that he was libeled in the concluding paragraph of a subsequent article entitled “Former F. D. Man disbarred,” printed in the Fort Dodge Messenger on August 30, 1976. That paragraph reads as follows: “Littlefield no longer lives in Fort Dodge and his present whereabouts are not known, though he was reportedly living in New Orleans at one time.” Littlefield contends that this was written in an “FBI wanted poster style and con-taints] false and misleading information.” The record discloses that the paper made several attempts to determine Littlefield’s current address but was unable to do so. Thus, although Littlefield’s whereabouts may have been known to some, we cannot say that the statement was false. Certainly it was not libelous. . The court specifically avoided making the nature of the issue under discussion, i. e., disciplinary proceedings, a determinative factor in reaching the conclusion that Littlefield was a public figure; it considered Littlefield’s voluntary conduct alone to be sufficient to support its holding. Littlefield v. Fort Dodge Messenger et al., 481 F.Supp. 919, 922 (D.N.D.Iowa 1978). . While we do not reach the issue of fault, we note that the standard required of private plaintiffs under Iowa libel law is not clear. Gertz v. Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), requires that state libel law not impose liability without fault. Thus, states must require defamation plaintiffs to prove at least negligence in the publication of defamatory falsehoods; they may require more. See Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (Ill.1975). The Supreme Court of Iowa expressly reserved its judgment on the standard applicable to private plaintiffs in McCarney v. Des Moines Register & Tribune Co., 239 N.W.2d 152, 158 (Iowa 1976). Even assuming that Iowa would adopt the negligence standard, it appears that Littlefield failed to make even that showing. The record indicates that the defendant reporter, who checked his story, in general terms, with a variety of sources including Littlefield, exercised due care in writing the piece. 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_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, v. Samuel RAPPAPORT, Appellant in No. 13388, Lennore (also known as Lynn) Rappaport, Appellant in No. 13475, Eli Penn, Appellant in No. 13476. Nos. 13388, 13475, 13476. United States Court of Appeals Third Circuit. Argued April 4, 1961. Decided June 5, 1961. Donald J. Goldberg, Philadelphia, Pa. (Garfield W. Levy, Philadelphia, Pa., on the brief), for appellants. Joseph J. Zapitz, Asst. U. S. Atty., Philadelphia, Pa. (Walter E. Alessandroni, U. S. Atty., Philadelphia, Pa., on the brief), for appellee. Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges. HASTIE, Circuit Judge. This mail fraud case was tried under an indictment containing a conspiracy count as well as several substantive counts alleging fraud through the mailing of fictitious credit references in a scheme to obtain merchandise without ever paying for it. Samuel Rappaport, his wife Lennore Rappaport, and Eli Penn have taken these appeals from their convictions on the conspiracy count and certain substantive counts. The sentences on the several counts were made to run concurrently and the grounds of appeal are such that it will suffice to examine the issues in the context of the conspiracy count. It is charged in the indictment that the conspiracy began about July 1, 1956, and continued until February 1958. The scheme is alleged to have involved leasing vacant premises and using these addresses, coupled with fictitious business names, to identify non-existent credit references. In the meantime, retail establishments were opened under the nominal proprietorship of Silvio Petti and Harry Gelman, conspirators who are not parties to this appeal. The fictitious references were then sent to suppliers of goods and merchandise in an effort to get credit for the newly opened establishments. When prospective suppliers made inquiry by mail to the fictitious references, the conspirators themselves answered the letters by mail, giving false assurances in the names of the fictitious references that the prospective purchasers enjoyed good credit standing. This fraud resulted in the sale and delivery of large amounts of merchandise, none of which was paid for. The evidence established overwhelmingly and without contradiction that this fraudulent scheme was devised and carried out with the use of the mails as an integral and essential feature. Penn’s defense was that he was an innocent employee of Petti, one of the named conspirators who was the nominal proprietor of one of the establishments which obtained merchandise by fraud. Rappaport’s defense was that he was merely an innocent purchaser of some of the merchandise from those who were subsequently shown to have obtained it by fraud of which he was unaware. These contentions were contradicted by impressive evidence that Rappaport and Penn were principal participants, indeed the moving spirits, in the entire scheme. It was shown that Rappaport was a merchant, experienced in retail selling. In 1956 he had hired Petti as a truck driver. In 1957, according to Petti’s own testimony, Rappaport set Petti up in business under the name “Silvio Distributors”. Rappaport paid Petti’s original business costs, including store rental. Though ostensibly Petti became an independent business man, Rappaport continued to pay him a salary and promised him a bonus at the end of the year. Admittedly, much of the merchandise purchased in the name of Silvio Distributors was ultimately transferred to Rappaport’s own place of business and there sold at auction. Penn was the brother-in-law of Rappaport and a business associate. He personally participated in the acquisition of several vacant premises which were used thereafter as addresses for fictitious credit references. He was seen collecting mail at one of these vacant premises. He instructed Petti on details of operating the Silvio Distributors establishment. There was evidence of similar conduct by Rappaport and Penn in setting up a second business in the name of Gelman, another conspirator. The same pattern of financing and use of fictitious credit references appeared in connection with Gelman’s acquisition of merchandise. Indeed, Petti and Gelman were principal prosecution witnesses and each told a detailed story of a scheme devised and directed by Rappaport and Penn. As has already been indicated, Rappaport and Penn claimed that they acted innocently and that the others were the wrongdoers. In these circumstances, the fact that Petti was a truck driver without business experience, capital, or any apparent means of financing a new business would have made it most difficult for any jury to credit the testimony of Rappaport and Penn that they were innocently dealing with Petti and were unaware of any fraudulent scheme to obtain credit. Their story was implausible on its face. In this context we consider the only substantial point made by Penn and Rappaport on this appeal. They complain that a large amount of evidence was introduced over objection showing that in the months immediately preceding the establishment of Silvio Distributors and the Gelman enterprise, Penn himself bought a large amount of merchandise as stock in trade for his own business and thereafter failed to pay for it. It is argued that this evidence had no substantial probative value in establishing the conspiracy charged, yet was prejudicial in showing that the discreditable practice of buying merchandise and failing to pay for it was Penn’s characteristic way of doing business. If the other evidence of the prosecution which related directly to the fraud charge had been scanty or weak or if Penn’s rebuttal of that direct testimony had been strong, this argument of prejudice would have been substantial. Cf. Erber v. United States, 2 Cir., 1916, 234 F. 221. But the direct evidence of the wrongdoing charged was so strong and the defense on its face so implausible as to show Penn in a much worse light than did the evidence of past irresponsible business behavior to which he objected. In these circumstances we find no substantial likelihood that Penn was injured by the testimony of past business behavior. A fortiori, Rappaport, who was not shown to have defaulted on any bills could not have been injured. The case is different with respect to Rappaport’s wife, Lennore. There is no evidence whatever that she was aware of, much less a party to the “Silvio” and “Gelman” enterprises, or the planning or execution of the false credit reference scheme. On the record her business association was solely with “Lynco”, a general merchandising enterprise of her husband. In July 1956 she signed a lease for the building where that business was conducted. For a number of months thereafter she worked in the Lynco store, marking merchandise, operating the cash register, and performing other office operations incidental to this business. All of this activity antedated the establishment of the Silvio and Gelman enterprises. None of it was shown to have been in any way connected with or in anticipation of those future enterprises. A person can be convicted of guilty participation in a conspiracy on the basis of acts innocent in themselves only if he had guilty knowledge that what he did was in furtherance of the corrupt enterprise charged. United States v. Crimmins, 2 Cir., 1941, 123 F.2d 271; Davidson v. United States, 8 Cir., 1932, 61 F.2d 250. Here it is not even shown that Lennore Rappaport’s acts in fact aided the conspiracy, much less that she was aware that her conduct was connected with wrongdoing. Her conviction must have been based on speculation without logical basis in the record and, therefore, cannot stand. The convictions of Samuel Rappaport and Eli Penn will be affirmed. The conviction of Lennore Rappaport will be reversed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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 Hazel A. PARMER, Plaintiff-Appellant, v. The NATIONAL CASH REGISTER COMPANY et al., Defendants-Appellees. No. 74-1131. United States Court of Appeals, Sixth Circuit. Argued June 10, 1974. Decided Sept. 20, 1974. Milton A. Hayman, Steubenville, Ohio, for plaintiff-appellant. N. Victor Goodman, Columbus, Ohio, for International Brotherhood of Electrical Workers; Topper, Alloway, Goodman, DeLeone & Duffey, Columbus, Ohio, on brief. J. Mack Swigert, Cincinnati, Ohio, for National Cash Register Co.; Taft, Stet-tinius & Hollister, William K. Engeman, Lawrence J. Barty, Cincinnati, Ohio, Robert E. Signom, Dayton, Ohio, of counsel. Donald G. Logsdon, Charleston, W. Va., for Local 1854, International Brotherhood of Electrical Workers; Stanley M. Hostler, Hostler, Logsdon, Shinaber-ry & McHugh, Charleston, W. Va., on brief. Before EDWARDS, McCREE and ENGEL, Circuit Judges. PER CURIAM. We consider an appeal from a judgment entered upon dismissal of plaintiff-appellant’s suit brought under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), and Section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), against National Cash Register Company (NCR), International Brotherhood of Electrical Workers, and Local 1854, International Brotherhood of Electrical Workers. Hazel Parmer alleged in her complaint that she was employed by NCR for more than three years until her discharge on August 19, 1969. During that period, she was a member in good standing of Local 1854. On that date, appellant was ordered to work in a lower job classification to fill in for absent employees whose production duties were deemed essential. She refused, claiming that only women were ordered to work temporarily in these lower job classifications, while men with less seniority were never requested to perform similar duties. She was then discharged, pursuant to the collective bargaining agreement, for insubordination. The Local processed her grievance to a step short of arbitration and carried it no further for want of merit. Appellant alleged that, because of her sex, she was discriminatorily harassed and ultimately discharged by the company in violation of her rights, and that the local and international unions, by failing to properly process her grievance, breached their duty of fair representation. On appeal, Parmer presents five issues in which she claims error on the part of the district court. First, she contends that she proved by a preponderance of the evidence that the International and Local jointly violated their duty of fair representation in processing the grievance relating to her discharge and that the court erred in not so finding; second, that the preponderance of evidence affirmatively established, contrary to the court’s determination, that she was discharged for discrimination because of sex within the meaning of 42 U.S.C. § 2000e-5(g); third, that the court should have held that the evidence clearly established that appellees had collectively violated Title VII of the Civil Rights Act of 1964; fourth, that the court erred in not granting her costs and attorney’s fees for pursuing her cause of action pursuant to 42 U.S.C. § 2000e-5(k); and, fifth, that the court erred in not permitting all issues against all defendants, as stipulated by the parties, to be presented at the same time for its full consideration. Rule 52(a) of the Federal Rules of Civil Procedure provides that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness.” This means that a determination of fact will not be overturned unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed,” United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Ash v. Hobart Mfg. Co., 483 F.2d 289 (6th Cir. 1973), viewing the evidence in the light most favorable to the prevailing party, Nathan Const. Co. v. Fenestra, Inc., 409 F.2d 134, 137-138 (8th Cir. 1969), see Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 790 (6th Cir. 1963). The trial court found that appellant failed to establish her case by a preponderance of the evidence. Although the evidence in this case would permit the inferences that appellant was discharged because of sex, and that the Local and International breached their duty of fair representation, we cannot conclude that the lower court was clearly erroneous in its findings. Also appellant’s fourth assignment is unavailing since, by virtue of the language of Section 2000e-5(k), costs and attorney’s fees are awarded only to the prevailing party. The final assignment of error is that, since the claims against both the company and the unions, and the evidence relating to them, were so closely interrelated, failure to consider them at the same time was reversible error. The decision to sever issues is left to the sound discretion of the trial court and its determination should only be reversed for abuse of that discretion, Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir. 1973). Here appellant has failed to show how she was prejudiced by any severance of the issues, and since she failed to object to the procedures of which she complains, we find no error in this respect. Affirmed. . There was a general practice of making temporary job assignments of this nature from appellant’s job classification, mechanical line inspector, which was an experimental classification that was being phased out in the ongoing collective bargaining negotiations. Question: 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. HARRIS v. UNITED STATES No. 00-10666. Argued March 25, 2002 Decided June 24, 2002 Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C. J., and O’Connor, Scalia, and Breyer, JJ., joined, and an opinion with respect to Part III, in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 569. Breyer, J., filed an opinion concurring in part and concurring in the judgment, post, p. 569. Thomas, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 572. William C. Ingram, by appointment of the Court, 534 U. S. 1160, argued the cause for petitioner. With him on the briefs were Louis C. Allen III, Elizabeth A. Flagg, and Jeffrey T Green. Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Matthew D. Roberts, and Nina Goodman Briefs of amici curiae urging reversal were filed for the Cato Institute et al. by Stephen P Halbrook; and for Families Against Mandatory Minimums Foundation by Peter Goldberger and Mary Price. Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by David Samson, Attorney General of New Jersey, and Lisa Sarnoff Gochman, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, D. Michael Fisher of Pennsylvania, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont, Elliot M. Davis of the Virgin Islands, and Darrell V. McGraw, Jr., of West Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson. Justice Kennedy announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, in which The Chief Justice, Justice O’Connor, and Justice Scalia join. Once more we consider the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence,'Legislatures define crimes in terms of the facts that are their essential elements, and constitutional guarantees attach to these facts. In federal prosecutions, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” alleging all the elements of the crime. U. S. Const., Amdt. 5; see Hamling v. United States, 418 U. S. 87, 117 (1974). “In all criminal prosecutions,” state and federal, “the accused shall enjoy the right to... trial... by an impartial jury,” U. S. Const., Amdt. 6; see Duncan v. Louisiana, 391 U. S. 145, 149 (1968), at which the government must prove each element beyond a reasonable doubt, see In re Winship, 397 U. S. 358, 364 (1970). Yet not all facts affecting the defendant’s punishment are elements. After the accused is convicted, the judge may impose a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements, and are thus not subject to the Constitution’s indictment, jury, and proof requirements. Some statutes also direct judges to give specific weight to certain facts when choosing the sentence. The statutes do not require these facts, sometimes referred to as sentencing factors, to be alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt. The Constitution permits legislatures to make the distinction between elements and sentencing factors, but it imposes some limitations as well. For if it did not, legislatures could evade the indictment, jury, and proof requirements by labeling almost every relevant fact a sentencing factor. The Court described one limitation in this respect two Terms ago in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,” whether the statute calls it an element or a sentencing factor, “must be submitted to a jury, and proved beyond a reasonable doubt.” Fourteen years before, in McMillan v. Pennsylvania, 477 U. S. 79 (1986), the Court had declined to adopt a more restrictive constitutional rule. McMillan sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm. The principal question before us is whether McMillan stands after Apprendi. I Petitioner William Joseph Harris sold illegal narcotics out of his pawnshop with an unconcealed semiautomatic pistol at his side. He was later arrested for violating federal drug and firearms laws, including 18 U. S. C. § 924(c)(1)(A). That statute provides in relevant part: “[A]ny person who, during and in relation to any crime of violence or drug trafficking crime... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime— “(i) be sentenced to a term of imprisonment of not less than 5 years; “(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and “(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” The Government proceeded on the assumption that § 924(c)(1)(A) defines a single crime and that brandishing is a sentencing factor to be considered by the judge after the trial. For this reason the indictment said nothing of brandishing and made no reference to subsection (ii). Instead, it simply alleged the elements from the statute’s principal paragraph: that “during and in relation to a drug trafficking crime,” petitioner had “knowingly carried] a firearm.” At a bench trial the United States District Court for the Middle District of North Carolina found petitioner guilty as charged. Following his conviction, the presentence report recommended that petitioner be given the 7-year minimum because he had brandished the gun. Petitioner objected, citing this Court’s decision in Jones v. United States, 526 U. S. 227 (1999), and arguing that, as a matter of statutory interpretation, brandishing is an element of a separate offense, an offense for which he had not been indicted or tried. At the sentencing hearing the District Court overruled the objection, found by a preponderance of the evidence that petitioner had brandished the gun, and sentenced him to seven years in prison. In the Court of Appeals for the Fourth Circuit petitioner again pressed his statutory argument. He added that if brandishing is a sentencing factor as a statutory matter, the statute is unconstitutional in light of Apprendi — even though, as petitioner acknowledged, the judge’s finding did not alter the maximum penalty to which he was exposed. Rejecting these arguments, the Court of Appeals affirmed. 243 F. 3d 806 (2001). Like every other Court of Appeals to have addressed the question, it held that the statute makes brandishing a sentencing factor. Id., at 812; accord, United States v. Barton, 257 F. 3d 433, 443 (CA5 2001); United States v. Carlson, 217 F. 3d 986, 989 (CA8 2000); United States v. Pounds, 230 F. 3d 1317, 1319 (CA11 2000). The court also held that the constitutional argument was foreclosed by McMillan. 243 F. 3d, at 809. We granted certiorari, 534 U. S. 1064 (2001), and now affirm. II We must first answer a threshold question of statutory construction: Did Congress make brandishing an element or a sentencing factor in § 924(c)(1)(A)? In the Government’s view the text in question defines a single crime, and the facts in subsections (ii) and (iii) are considerations for the sentencing judge. Petitioner, on the other hand, contends that Congress meant the statute to define three different crimes. Subsection (ii), he says, creates a separate offense of which brandishing is an element. If petitioner is correct, he was neither indicted nor tried for that offense, and the 7-year minimum did not apply. So we begin our analysis by asking what § 924(c)(1)(A) means. The statute does not say in so many words whether brandishing is an element or a sentencing factor, but the structure of the prohibition suggests it is the latter. Federal laws usually list all offense elements “in a single sentence” and separate the sentencing factors “into subsections.” Castillo v. United States, 530 U. S. 120, 125 (2000). Here, § 924(c)(1)(A) begins with a lengthy principal paragraph listing the elements of a complete crime — “the basic federal offense of using or carrying a gun during and in relation to” a violent crime or drug offense. Id., at 124. Toward the end of the paragraph is “the word ‘shall,’ which often divides offense-defining provisions from those that specify sentences.” Jones, 526 U. S., at 233. And following “shall” are the separate subsections, which explain how defendants are to “be sentenced.” Subsection (i) sets a catchall minimum and “certainly adds no further element.” Ibid. Subsections (ii) and (iii), in turn, increase the minimum penalty if certain facts are present, and those subsections do not repeat the elements from the principal paragraph. When a statute has this sort of structure, we can presume that its principal paragraph defines a single crime and its subsections identify sentencing factors. But even if a statute “has a look to it suggesting that the numbered subsections are only sentencing provisions,” id., at 232, the text might provide compelling evidence to the contrary. This was illustrated by the Court’s decision in Jones, in which the federal carjacking statute, which had a similar structure, was interpreted as setting out the elements of multiple offenses. The critical textual clues in this case, however, reinforce the single-offense interpretation implied by the statute’s structure. Tradition and past congressional practice, for example, were perhaps the most important guideposts in Jones. The fact at issue there — serious bodily injury — is an element in numerous federal statutes, including two on which the carjacking statute was modeled; and the Jones Court doubted that Congress would have made this fact a sentencing factor in one isolated instance. Id., at 235-237; see also Castillo, supra, at 126-127; Almendarez-Torres v. United States, 523 U. S. 224, 230 (1998). In contrast, there is no similar federal tradition of treating brandishing and discharging as offense elements. In Castillo v. United States, supra, the Court singled out brandishing as a paradigmatic sentencing factor: “Traditional sentencing factors often involve... special features of the manner in which a basic crime was carried out (e. g., that the defendant... brandished a gun).” Id., at 126. Under the Sentencing Guidelines, moreover, brandishing and discharging affect the sentences for numerous federal crimes. See, e. g., United States Sentencing Commission, Guidelines Manual §§2A2.2(b)(2), 2B3.1(b)(2), 2B3.2(b)(3)(A), 2E2.1(b)(l), 2L1.1(b)(4) (Nov. 2001). Indeed, the Guidelines appear to have been the only antecedents for the statute’s brandishing provision. The term “brandished” does not appear in any federal offense-defining provision save 18 U. S. C. § 924(c)(1)(A), and did not appear there until 1998, when the statute was amended to take its current form. The numbered subsections were added then, describing, as sentencing factors often do, “special features of the manner in which” the statute’s “basic crime” could be carried out. Castillo, supra, at 126. It thus seems likely that brandishing and discharging were meant to serve the same function under the statute as they do under the Guidelines. We might have had reason to question that inference if brandishing or discharging altered the defendant’s punishment in a manner not usually associated with sentencing factors. Jones is again instructive. There the Court accorded great significance to the “steeply higher penalties” authorized by the carjacking statute’s three subsections, which enhanced the defendant’s maximum sentence from 15 years, to 25 years, to life — enhancements the Court doubted Congress would have made contingent upon judicial factfinding. 526 U. S., at 233; see also Castillo, supra, at 131; Almendarez-Torres, supra, at 235-236. The provisions before us now, however, have an effect on the defendant’s sentence that is more consistent with traditional understandings about how sentencing factors operate; the required findings constrain, rather than extend, the sentencing judge’s discretion. Section 924(c)(1)(A) does not authorize the judge to impose “steeply higher penalties” — or higher penalties at all — once the facts in question are found. Since the subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm. The incremental changes in the minimum — from 5 years, to 7, to 10 — are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge’s consideration. Nothing about the text or history of the statute rebuts the presumption drawn from its structure. Against the single-offense interpretation to which these considerations point, however, petitioner invokes the canon of constitutional avoidance. Under that doctrine, when “a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). It is at least an open question, petitioner contends, whether the Fifth and Sixth Amendments require every fact increasing a federal defendant’s minimum sentence to be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. To avoid resolving that question (and possibly invalidating the statute), petitioner urges, we should read § 924(c)(1)(A) as making brandishing an element of an aggravated federal crime. The avoidance canon played a role in Jones, for the subsections of the carjacking statute enhanced the maximum sentence, and a single-offense interpretation would have implicated constitutional questions later addressed — and resolved in the defendant’s favor — by Apprendi. See Jones, supra, at 243, n. 6 (“[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt”). Yet the canon has no role to play here. It applies only when there are serious concerns about the statute’s constitutionality, Reno v. Flores, 507 U. S. 292, 314, n. 9 (1993), and petitioner’s proposed rule — that the Constitution requires any fact increasing the statutory minimum sentence to be accorded the safeguards assigned to elements — was rejected 16 years ago in McMillan. Petitioner acknowledges as much but argues that recent developments cast doubt on McMillan’s viability. To avoid deciding whether McMillan must be overruled, he says, we should construe the problem out of the statute. Petitioner’s suggestion that we use the canon to avoid overruling one of our own precedents is novel and, given that McMillan was in place when § 924(c)(1)(A) was enacted, unsound. The avoidance canon rests upon our “respect for Congress, which we assume legislates in the light of constitutional limitations.” Rust v. Sullivan, 500 U. S. 173, 191 (1991). The statute at issue in this case was passed when McMillan provided the controlling instruction, and Congress would have had no reason to believe that it was approaching the constitutional line by following that instruction. We would not further the canon’s goal of eliminating friction with our coordinate branch, moreover, if we alleviated our doubt about a constitutional premise we had supplied by adopting a strained reading of a statute that Congress had enacted in reliance on the premise. And if we stretched the text to avoid the question of McMillan's continuing vitality, the canon would embrace a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed. We decline to adopt that approach. As the avoidance canon poses no obstacle and the interpretive circumstances point in a common direction, we conclude that, as a matter of statutory interpretation, § 924(e)(1)(A) defines a single offense. The statute regards brandishing and discharging as sentencing factors to be found by the judge, not offense elements to be found by the jury. III Confident that the statute does just what McMillan said it could, we consider petitioner’s argument that § 924(c)(l)(A)(ii) is unconstitutional because McMillan is no longer sound authority. Stare decisis is not an “inexorable command,” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405 (1932) (Brandéis, J., dissenting), but the doctrine is “of fundamental importance to the rule of law,” Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 494 (1987). Even in constitutional cases, in which stare decisis concerns are less pronounced, we will not overrule a precedent absent a “special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984). The special justification petitioner offers is our decision in Apprendi, which, he says, cannot be reconciled with McMillan. Cf. Ring v. Arizona, post, at 609 (overruling Walton v. Arizona, 497 U. S. 639 (1990), because “Walton and Apprendi are irreconcilable”). We. do not find the argument convincing. As we shall explain, McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime — and thus the domain of the jury — by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with Or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution. Though defining criminal conduct is a task generally “left to the legislative branch,” Patterson v. New York, 432 U. S. 197, 210 (1977), Congress may not manipulate the definition of a crime in a way that relieves the Government of its constitutional obligations to charge each element in the indictment, submit each element to the jury, and prove each element beyond a reasonable doubt, Jones, 526 U. S., at 240-241; Mullaney v. Wilbur, 421 U. S. 684, 699 (1975). McMillan and Apprendi asked whether certain types of facts, though labeled sentencing factors by the legislature, were nevertheless “traditional elements” to which these constitutional safeguards were intended to apply. Patterson v. New York, supra, at 211, n. 12. McMillan’s answer stemmed from certain historical and doctrinal understandings about the role of the judge at sentencing. The mid-19th century produced a general shift in this country from criminal statutes “providing fixed-term sentences to those providing judges discretion within a permissible range.” Apprendi, 530 U. S., at 481. Under these statutes, judges exercise their sentencing discretion through “an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446 (1972). The Court has recognized that this process is constitutional — and that the facts taken into consideration need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. See, e. g., United States v. Watts, 519 U. S. 148, 156 (1997) (per curiam); Nichols v. United States, 511 U. S. 738, 747 (1994); Williams v. New York, 337 U. S. 241, 246 (1949). As the Court reiterated in Jones: “It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution.” 526 U. S., at 248. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. That proposition, coupled with another shift in prevailing sentencing practices, explains McMillan. In the latter part of the 20th century, many legislatures, dissatisfied with sentencing disparities among like offenders, implemented measures regulating judicial discretion. These systems maintained the statutory ranges and the judge’s factfinding role but assigned a uniform weight to factors judges often relied upon when choosing a sentence. See, e. g., Payne v. Tennessee, 501 U. S. 808, 820 (1991). One example of reform, the kind addressed in McMillan, was mandatory minimum sentencing. The Pennsylvania Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982), imposed a minimum prison term of five years when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm while committing the crime of conviction. In sustaining the statute the McMillan Court placed considerable reliance on the similarity between the sentencing factor at issue and the facts judges contemplate when exercising their discretion within the statutory range. Given that the latter are not elements of the crime, the Court explained, neither was the former: “Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 ‘ups the ante’ for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan.... Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really’ an element of the offenses for which they are being punished... would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment,... but it does not.” 477 U. S., at 87-88 (footnote omitted). In response to the argument that the Act evaded the Constitution’s procedural guarantees, the Court noted that the statute “simply took one factor that has always been considered by sentencing courts to bear on punishment... and dictated the precise weight to be given that factor.” Id., at 89-90. That reasoning still controls. If the facts judges consider when exercising their discretion within the statutory range are not elements, they do not become as much merely because legislatures require the judge to impose a minimum sentence when those facts are found — a sentence the judge could have imposed absent the finding. It does not matter, for the purposes of the constitutional analysis, that in statutes like the Pennsylvania Act the “State provides” that a fact “shall give rise both to a special stigma and to a special punishment.” Id., at 108 (Stevens, J., dissenting). Judges choosing a sentence within the range do the same, and “[j]udges, it is sometimes necessary to remind ourselves, are part of the State.” Apprendi, supra, at 498 (Scalia, J., concurring). These facts, though stigmatizing and punitive, have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime. This conclusion might be questioned if there were extensive historical evidence showing that facts increasing the defendant’s minimum sentence (but not affecting the maximum) have, as a matter of course, been treated as elements. The evidence on this score, however, is lacking. Statutes like the Pennsylvania Act, which alter the minimum sentence without changing the maximum, were for the most part the product of the 20th century, when legislatures first asserted control over the sentencing judge’s discretion. Courts at the founding (whose views might be relevant, given the contemporaneous adoption of the Bill of Rights, see Apprendi, 530 U. S., at 478-484) and in the mid-19th century (whose views might be relevant, given that sentencing ranges first arose then, see id., at 501-518 (Thomas, J., concurring)) were not as a general matter required to decide whether a fact giving rise to a mandatory minimum sentence within the available range was to be alleged in the indictment and proved to the jury. See King & Klein, Essential Elements, 54 Vand. L. Rev. 1467, 1474-1477 (2001). Indeed, though there is no clear record of how history treated these facts, it is clear that they did not fall within the principle by which history determined what facts were elements. That principle defined elements as “fact[s]... legally essential to the punishment to be inflicted.” United States v. Reese, 92 U. S. 214, 232 (1876) (Clifford, J., dissenting) (citing 1 J. Bishop, Law of Criminal Procedure §81, p. 51 (2d ed. 1872)). This formulation includes facts that, as McMillan put it, “alte[r] the maximum penalty,” 477 U. S., at 87, but it does not include facts triggering a mandatory minimum. The minimum may be imposed with or without the factual finding; the finding is by definition not “essential” to the defendant’s punishment. McMillan was on firm historical ground, then, when it held that a legislature may specify the condition for a mandatory minimum without making the condition an element of the crime. The fact of visible firearm possession was more like the facts considered by judges when selecting a sentence within the statutory range — facts that, as the authorities from the 19th century confirm, have never been charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt: “[Wjithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. Where the law permits the heaviest punishment, on a scale laid down, to be inflicted, and has merely committed to the judge the authority to interpose its mercy and inflict a punishment of a lighter grade, no rights of the accused are violated though in the indictment there is no mention of mitigating circumstances. The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him.” Bishop, Criminal Procedure § 85, at 54. Since sentencing ranges came into use, defendants have not been able to predict from the face of the indictment precisely what their sentence will be; the charged facts have simply made them aware of the “heaviest punishment” they face if convicted. Ibid. Judges, in turn, have always considered uncharged “aggravating circumstances” that, while increasing the defendant’s punishment, have not “swell[ed] the penalty above what the law has provided for the acts charged.” Ibid. Because facts supporting a mandatory minimum fit squarely within that description, the legislature’s choice to entrust them to the judge does not implicate the “competition... between judge and jury over... their respective roles,” Jones, 526 U. S., at 245, that is the central concern of the Fifth and Sixth Amendments. At issue in Apprendi, by contrast, was a sentencing factor that did “swell the penalty above what the law has provided,” Bishop, supra, §85, at 54, and thus functioned more like a “traditional elemen[t].” Patterson v. New York, 432 U. S., at 211, n. 12. The defendant had been convicted of illegal possession of a firearm, an offense for which New Jersey law prescribed a maximum of 10 years in prison. See N. J. Stat. Ann. §§ 2C:39-4(a), 2C:43-6(a)(2) (1995). He was sentenced to 12 years, however, because a separate statute permitted an enhancement when the judge found, by a preponderance of the evidence, that the defendant “acted with a purpose to intimidate an individual or group of individuals because of race.” §2C:44-3(e) (Supp. 2001-2002). The Court held that the enhancement was unconstitutional. “[0]ur cases in this area, and... the history upon which they rely,” the Court observed, confirmed the eonstitu- tional principle first identified in Jones: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490. Those facts, Apprendi held, were what the Framers had in mind when they spoke of “crimes” and “criminal prosecutions” in the Fifth and Sixth Amendments: A crime was not alleged, and a criminal prosecution not complete, unless the indictment and the jury verdict included all the facts to which the legislature had attached the maximum punishment. Any “fact that... exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone,” the Court concluded, id., at 483, would have been, under the prevailing historical practice, an element of an aggravated offense. See id., at 479-481; see also id., at 501-518 (Thomas, J., concurring). Apprendi's conclusions do not undermine McMillan’s. There was no comparable historical practice of submitting facts increasing the mandatory minimum to the jury, so the Apprendi rule did not extend to those facts. Indeed, the Court made clear that its holding did not affect McMillan at all: “We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” 530 U. S., at 487, n. 13. The sentencing factor in McMillan did not increase “the penalty for a crime beyond the prescribed statutory maximum,” 530 U. S., at 490; nor did it, as the concurring opinions in Jones put it, “alter the eongressionally prescribed range of penalties to which a criminal defendant is exposed,” 526 U. S., at 253 (Scalia, J., concurring). As the Apprendi Court observed, the McMillan finding merely required the judge to impose “a specific sentence within the range authorized by the jury’s finding that the defendant [was] guilty.” 530 U. S., at 494, n. 19; see also Jones, supra, at 242 (“[T]he Winship issue [in McMillan] rose from a provision that a judge’s finding (by a preponderance) of visible possession of a firearm would require a mandatory minimum sentence for certain felonies, but a minimum that fell within the sentencing ranges otherwise prescribed”). As its holding and the history on which it was based would suggest, the Apprendi Court's understanding of the Constitution is consistent with the holding in McMillan. Facts extending the sentence beyond the statutory maximum had traditionally been charged in the indictment and submitted to the jury, Apprendi said, because the function of the indictment and jury had been to authorize the State to impose punishment: “The evidence... that punishment was, by law, tied to the offense... and the evidence that American judges have exercised sentencing discretion within a legally prescribed range... point to a single, consistent conclusion: The judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” 530 U. S., at 483, n. 10. The grand and petit juries thus form a “ ‘strong and two-fold barrier... between the liberties of the people and the prerogative of the [government].’” Duncan v. Louisiana, 391 U. S., at 151 (quoting W. Blackstone, Commentaries on the Laws of England 349 (T. Cooley ed. 1899)). Absent authorization from the trial jury — in the form of a finding, by proof beyond a reasonable doubt, of the facts warranting the extended sentence under the New Jersey statute — the State had no power to sentence the defendant to more than 10 years, the maximum “authorized by the jury’s guilty verdict.” Apprendi, 530 U. S., at 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_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). Francis Hunter PRESSLY, Appellant, v. Terrell Don HUTTO, Director; Thomas J. Towberman, Regional Administrator; N.D. Hall, Regional Ombudsman; W.J. Townley, Superintendent, Unit #23; Ms. Tucker, Nurse, Unit #23; Sgt. Smoot, Officer in Charge, Unit #23; Sgt. Ford, Officer in Charge, Unit #23; Sgt. R.R. Overby, Officer in Charge, Unit #23; Officer Griffith; Officer Poole; Officer Nichols; Officer Cole, Appellees. No. 82-6181. United States Court of Appeals, Fourth Circuit. Argued Feb. 3, 1987. Decided April 28, 1987. George Rutherglen, Supervising Atty., University of Virginia School of Law; Elizabeth Finn Johnson, Third-Year Student, University of Virginia School of Law, for appellant. Nelson H.C. Fisher, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., of Va.; Mark R. Davis, Asst. Atty. Gen., on brief), for appellees. Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge. JAMES DICKSON PHILLIPS, Circuit Judge: Francis Pressly, a convicted Virginia inmate at the time this action was filed, appeals the district court’s grant of summary judgment for defendants in his 42 U.S.C. § 1983 action against employees of the Department of Corrections. We affirm in part, vacate in part, and remand. Although Pressly raised several claims, all of which were denied, he appeals only the denial of his claim against Sergeant R.R. Overby. The relevant forecast of evidence, as developed on the summary judgment record, was as follows. At approximately 7:30 p.m. on June 22, 1981, a disturbance erupted in the South-side Dormitory of Halifax County Correctional Unit # 23 involving Pressly and three other inmates, Russell, Powell, and Tobias. Sergeant R.R. Overby, the officer in charge that evening, went to the dormitory and found Pressly and Powell engaged in an argument. Because Pressly had sustained an injury to his eye, he was taken to the emergency room of a local hospital where he was treated and released. Sgt. Overby testified that after Pressly returned from the hospital he questioned all four inmates about the incident and received four different accounts. Pressly maintained that Powell, Tobias, and Russell had assaulted him because Powell thought Pressly had made a disparaging remark about Powell. Russell claimed to know nothing about th.e incident. Powell stated that Pressly had swung at him and missed. According to Powell, when Powell then grabbed Pressly’s head, the two fell to a bed causing Pressly to hurt his eye. Tobias stated that Pressly and Powell were fighting but that Powell made no effort to defend himself. No corrections officers observed the incident. Sgt. Overby asserted that he then asked each inmate whether he felt safe returning to the dormitory and that each indicated that he felt safe and did not want to be moved or placed in segregation. Pressly claimed to the contrary that he asked to be separated from Powell, Tobias, and Russell. In any event, all four were returned to the same dormitory. At about 11:00 p.m. that same night, Sgt. Overby was told that an inmate had reported that there was going to be trouble in the southside dormitory. After making a personal check of the dormitory and finding everything quiet, Overby sent an extra officer to the dormitory in case trouble developed. This officer was removed at about 11:30 p.m. Almost four hours later, at about 3:15 a.m., inmate Tobias assaulted Pressly while Pressly was asleep, striking him about the head with a large, metal padlock. Sgt. Overby was summoned to the dormitory. He confiscated the padlock from Tobias and obtained an admission from Tobias that he had struck Pressly with the lock. Pressly was again taken to the emergency room where he received sutures and treatment for a concussion. After returning from the hospital, Pressly signed a statement that he would feel safe returning to the dormitory if “the perpetrators of the incident [were] moved to another dormitory.” Tobias was placed in pre-hearing detention and Pressly was returned to the dormitory. Pressly asserted that since the assault he has suffered headaches and a loss of hearing in his left ear. The district court granted summary judgment as to this claim on two grounds. First, it erroneously believed that Pressly had signed a statement refusing segregation after the first incident. The record shows, however, that Pressly signed a statement only after the second incident and that this statement indicated his willingness to return to the dormitory only if “the perpetrators” were removed. The record reflects a flat conflict in the testimony of Pressly and Sgt. Overby as to whether Pressly stated that he felt safe returning to the dormitory after the first incident. The second basis for the district court’s judgment was its assumption that Pressly’s complaint at best stated a claim for simple negligence, which the court ruled would not be sufficient to support finding a constitutional violation actionable under § 1983. Whether treated as a claim of deprivation of liberty without due process under the fourteenth amendment, or as a claim of eighth amendment violation, Pressly’s claim was properly denied if the evidence raised only an issue of mere negligence, as the district court concluded. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (mere negligent failure to protect inmate does not “deprive” of liberty, hence violate fourteenth amendment); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (“obduracy and wantonness, not inadvertence ... characterize the conduct prohibited by [the eighth amendment]”). As indicated, however, the district court proceeded on a basic misapprehension as to the critical evidence. The record discloses a flat conflict of testimony between Pressly and Sgt. Overby on the dispositive factual issue. If Pressly’s testimony were believed, Sgt. Overby could be found deliberately to have failed to protect him against a real and imminent risk of harm at the hands of fellow inmates, which risk was specifically known to Overby. If Sgt. Overby’s version is believed, any risk involved was either insignificant or unknown to him, or both, so that his failure to protect was at most mere negligence. Constitutional claims of convicted prison inmates that they have suffered physical harm at the hands either of prison officials or of fellow-inmates against whom prison officials failed to provide protection, are most appropriately assessed under the eighth amendment where both that source and the fourteenth amendment are invoked. The two sources provide essentially congruent protection, but the eighth amendment source is the primary one in this context. Whitley, 106 S.Ct. at 1088. The eighth amendment protects a convicted inmate from physical harm at the hands of fellow inmates resulting from the deliberate or callous indifference of prison officials to specific known risks of such harm, Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979), just as it protects against harm resulting from deliberate indifference of prison officials to serious medical needs, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Cf. Whitley, 106 U.S. at 1084-85 (contrasting “deliberate indifference” standard with more stringent “wantonness” standard applicable where physical force directly applied by prison officials to maintain security or discipline). Here, as indicated, there is a disputed issue of fact as to the exact circumstances under which Pressly suffered harm at the hands of fellow inmates. That issue is a “genuine” one as to a “material” fact. If Pressly’s version were accepted by a fact-finder, it could support a legal determination that his harm resulted from the “deliberate indifference” of the defendant Overby. Summary judgment was therefore not appropriate as to this claim, and the case must be remanded for further proceedings. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. 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_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. Dewey J. HASSLER, Plaintiff-Appellant, v. Casper WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 73-1754. United States Court of Appeals, Seventh Circuit. 'Argued Feb. 15, 1974. Decided Sept. 5, 1974. John A. Burgess, South Bend, Ind., for plaintiff-appellant. ' Kathryn H. Baldwin and Stanton R. Koppel, Attys., U. S. Dept, of Justice, Washington, D.C., John R. Wilks, U. S. Atty., Fort Wayne, Ind., for defendant-appellee. Before PELL, STEVENS, and SPRECHER, Circuit Judges. PELL, Circuit Judge. On July 18, 1969, plaintiff Dewey Hassler applied to the Social Security Administration for a period of disability and disability benefits. The Secretary of the Department of Health, Education and Welfare denied the application. Hassler commenced an action in the district court under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for review of the final decision of the Secretary. The district court denied the plaintiff’s motion for judgment on the pleadings and sustained the Secretary’s motion for summary judgmént. Judgment was entered accordingly and this appeal followed. The sole question on appeal is whether there was substantial evidence to support the Secretary’s determination. I At the time of his application, Hassler was 46 years old, married, and had a high school education. Until he ceased being employed in June 1969, the claimant had worked for over 23 years at the McCord Corporation. His most recent jobs there had been as a watchman and as a radiator inspector, tasks which Hassler described as requiring walking but no lifting. Hassler receives $182 a month as a pension from his former employer and $50 a month in proceeds from a G.I. insurance policy. In his application, Hassler listed a number of physical impairments [“hearing, heart, lung (chronic pneumothor-ax)”] as the cause of his inability to work. The claimant submitted in support of his application the report of his treating physician, Dr. James Coursey, a general practitioner. In his report, Dr. Coursey, after reviewing Hassler’s physical problems, stated as part of his diagnosis : “Psycho-social adjustment problem— severe; particularly with regard to steady employment at factory work.” At the request of the Disability Determination Section, Hassler was also examined by Dr. Howard Engel, an internist. On the basis of his examination of the claimant, Dr. Engel concluded: “I can see absolutely no reason why this man cannot be hired to do sedentary-type work.” Dr. Engel immediately added, however, that “[t]here is a tremendous amount of psychological overlay in this situation and I am afraid that it will be difficult for this man to take any type of work.” The agency denied Hassler’s application for benefits. Hassler then requested and was granted a hearing before an-examiner. At this hearing, Hassler represented himself and continued to rely only upon his physical impairments as the basis for disability benefits. After reviewing the evidence, the hearing examiner denied the disability benefits on the ground that Hassler did not have an impairment, or a combination of impairments, so severe as to preclude any substantial gainful activity, including the work in which the claimant had experience. When Hassler asked for review of the hearing examiner’s decision, the Appeals Council requested a psychiatric examination of Hassler. All three consultants seeing him found Hassler to have psychological problems. Dr. Kooiker, a Dip-lómate of the American Board of Psychiatry and Neurology, who had received the reports of the psychiatric social worker and the clinical psychologist, gave the most specific diagnosis: “DIAGNOSIS No. 1: Hypochon-driacal neurosis. This examiner considers that for practical purposes an equivalent diagnosis would be conversion reaction. AMA impairment rating — Class 2F, impairment rating 10%. a) Stress: In the opinion of this examiner, the basic problem is long frustrated dependency needs, some of which may have been mobilized by repeated clear-cut episodes of spontaneous pneumothorax. b) Predisposition: See Diagnosis No. 2. DIAGNOSIS No 2: Passive Aggressive personality. AMA impairment rating 5%. * * * * * * PROGNOSIS: In the opinion of this examiner, the patient is comfortably able to rationalize his dysfunction on the basis of various somatic symptoms. In addition to this, he is able to at least partially achieve some of his dependency needs by acquiring a disability rating from his company. Consequently, the prognosis for return to significant gainful activity is considered to be nil.”' After reviewing all of the evidence, including the psychiatric reports, the Appeals Council affirmed the decision of the hearing examiner which affirmance became the final decision of the Secretary. With respect to the psychiatric evidence, the Council stated: “[T]he claimant’s functional capabilities because of a nervous impairment are evaluated at only 15 percent disabling.” Hassler then filed this action for review of the Secretary’s decision. Has-sler was represented in the district court by counsel, who argued that Hassler’s impairments were largely mental, not physical. The district court granted the Secretary’s motion for summary judgment on the ground that the Secretary’s decision was supported by substantial evidence. In particular, the district court interpreted Dr. Kooiker’s final prognosis “as a statement that the plaintiff does not intend to work and is totally unwilling to recognize why. Clearly, Dr. Kooiker’s determination that plaintiff had only a fifteen percent (15%) mental impairment constituted more than substantial evidence that the plaintiff did not have a mental impairment within the meaning of the Social Security Act.” On appeal Hassler’s counsel again stresses that Hassler’s impairment is primarily mental rather than physical. This mental condition, it is argued, prevents Hassler from performing any type of work. In particular, counsel for Has-sler directs our attention to Dr. Kooiker’s finding that Hassler is suffering from hypochondriacal neurosis. (Dr. Kooiker noted that, for practical purposes, an equivalent diagnosis would be conversion reaction.) Such a condition is characterized by emotional distress and anxiety. The patient unconsciously produces physical symptoms to meet his psychological problem. “[T]he symptoms protect him from having to face the traumatic situation.” J. Coleman, Abnormal Psychology 208 (3d ed. 1964). Since the physical symptoms are unconsciously produced, the patient himself sees no relation between his symptoms and the stress situation. This lack of intent to deceive distinguishes the conversion reaction from malingering, where the symptoms are consciously produced with intent to deceive. Coleman, supra at 204-210; T. Harrison, Principles of Internal Medicine 1878-79 (7th ed. 1974). II In order to qualify for disability benefits under the Act, a claimant must show, first, that he is suffering from a medically determinable physical or mental impairment, and, second, that, due to this impairment, he is unable “to engage in any substantial gainful activity.” Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Pierce v. Gardner, 388 F.2d 846, 847-848 (7th Cir. 1967), cert. denied, 390 U.S. 928, 88 S.Ct. 865, 19 L.Ed.2d 992 (1968). Insofar as physical impairment is conceimed, upon which Hassler relied when he commenced the long trail seeking disability benefits, we would have no trouble in determining that there was substantial evidence supporting a decision that there was not a disqualifying physical impairment despite the fact that there was indeed evidence of physical impairment. The fracture of a limb is a matter of easy demonstration. The fracture of that delicate but complex conglomerate of elusive and variable components termed the human mind is not so easily demonstrable even though the resultant disability may be every bit as devastating as the physical trauma in its impact. While much distance has yet to be trav-elled, there has been an emergence from the darkness of thinking that it is only the gibbering idiot who cannot control the exercise of his will by simply putting his mind to it. Unfortunately there is still much blurring of the boundaries between those who have lost control and those who could but choose not to control, confusion between medical hysteria and hysterical actions, and failure to differentiate between hypochondriacal neurosis and malingering with hypo-chondriacal manifestations. It is primarily to the psychiatrist or psychoanalyst to whom we must turn, and indeed where the reliance was placed in the present case by the Secretary, for the “medically acceptable clinical and laboratory diagnostic techniques.” In the present ease, the Secretary concedes that Hassler has a mental impairment which affects his ability to engage in substantial gainful activity. (The Secretary specifically stated in oral argument that the agency does not regard Hassler as a malingerer.) The sole issue is whether Hassler’s mental impairments are so severe as to make him “disabled” within the meaning of the Act. In finding that Hassler was not disabled, the Secretary, as we have stated, relied on the psychiatric report submitted by Dr. Kooiker. Dr. Kooiker, the Secretary noted, had stated the “impairment ratings” for Hassler’s mental conditions to be 10% (for the hypochon-driacal neurosis) and 5% (for the passive aggressive personality). Such a low impairment rating, totalling 15% at best, could never, the Secretary concluded, be sufficient to render a claimant incapable of engaging in any substantial gainful activity. We reject, for two reasons, the Secretary’s interpretation of Dr. Kooiker’s report. First, the Secretary’s interpretation erroneously equates the degree of mental impairment with the degree of functional disability. The Appeals Council, thus, stated in its decision that “the claimant’s functional capabilities because of a nervous impairment are evaluated at only 15 percent disabling.” (Emphasis added.) This interpretation of Dr. Kooiker’s findings is clearly erroneous: the psychiatrist reported the impairment rating — not the disability rating — to be 15%. There is nothing in the record to support the Secretary’s assumption that the degree of mental impairment, as measured by the particular AMA scale utilized by Dr. Kooiker, corresponds on a one-to-one basis with the degree of functional disability. Second, and more important, the Secretary’s interpretation of Dr. Kooiker’s report precludes a consistent reading of the entire psychiatric evaluation. The view that Hassler’s mental impairments are only 15% disabling simply cannot be reconciled with Dr. Kooiker’s final conclusion that “the prognosis for return to significant gainful activity is considered to be nil.” It is possible, however, to harmonize the various statements in Dr. Kooiker’s report. After diagnosing Hassler’s mental impairment as being, in part, hypo-chondriacal neurosis, Dr. Kooiker added (under the subheading “Stress”): “[T]he basic problem is long frustrated dependency needs.” In his prognosis, the psychiatrist noted that “the patient is comfortably able to rationalize his dysfunction on the basis of various somatic symptoms.” In addition, Has-sler’s dependency needs, Dr. Kooiker found, have been satisfied to some extent by the claimant’s acquisition of a disability rating from his company. Dr. Kooiker then, as we have noted, presented his conclusion that “the prognosis for return to significant gainful activity is considered to be nil.” A careful reading of these statements indicates that Dr. Kooiker found that Hassler’s mental impairments (hypochondriacal neurosis and passive aggressive personality) are enhanced by rationalizations and by an official, “outside” corroboration (through the company disability rating) of the patient’s own view of himself as physically sick. The result is a total inability to engage in significant gainful activity. The Secretary may consider expert medical opinion regarding the claimant’s ability to engage in any substantial gainful activity although such evidence, in itself, is not binding upon the Secretary. Colwell v. Gardner, 386 F.2d 56, 72 (6th Cir. 1967); Teeter v. Flemming, 270 F.2d 871, 874 (7th Cir. 1959). Moreover, where two of more experts disagree in their opinions of the claimant’s disability, it is normally for the Secretary, and not the courts, to resolve these conflicts. Cyrus v. Celebrezze, 341 F.2d 192, 195 (4th Cir. 1965). However, the Secretary may not arbitrarily choose to ignore uncontroverted medical testimony. Colwell v. Gardner, supra, 386 F.2d at 72. Nor may he rely on one expert “to the disregard of overwhelming evidence to the contrary.” Cyrus v. Celebrezze, supra, 341 F.2d at 195. Likewise, the Secretary may not rely on a portion of an expert’s report where a fair reading of the entire report indicates that the expert reached a conclusion contrary to that asserted by the Secretary. In considering the present appeal we do not have a question of weighing conflicting expert opinions, which would be the province of the administrative agency. Here we know the expert upon whom reliance was placed. However, that expert’s opinion, when read in its entirety, indicates that Hassler. is disabled within the meaning of the Act. The Secretary’s contrary conclusion was based upon a misinterpretation of the report upon which he relied. We cannot agree with the district court’s interpretation of Dr. Kooiker’s prognosis as being a statement that plaintiff “does not intend to work and is totally unwilling to recognize why.” The very essence of the report, culminating in the prognosis, is that Hassler’s mental condition precluded his recognizing why he was abstaining from work. Any other interpretation must be predicated upon a malingering basis which has been excluded as a factor. That Hassler cannot return to gainful activity may well be partially attributable to the state of the civilization in which we live. We must look, however, at the case in that context and not in that of a primitive society. Since there was no substantial evidence to counter Dr. Kooiker’s prognosis of total disability, the Secretary’s deci.sion cannot stand. Teeter v. Flemming, supra, 270 F.2d at 874. The judgment is reversed and the case is remanded to the district court for further proceedings consistent with this opinion. Reversed and remanded. . 42 U.S.C. § 405(g) provides, in pertinent part: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .” . Gordon Reinsolireiber, a psychiatric social worker, stated: “The degree of impairment of the patient’s ability to relate to other people appears to be moderate. The degree of restriction of daily activities appears to be moderately severe. The degree of deterioration of personal habits appears to be none. The degree of constriction of interests of claimant appears to be moderately severe.” Edward Strain, a clinical psychologist, reported : “This is a hostile paranoid personality. This is a man who j>erceives the outside world as a threatening, over powering place and he is very paranoid about it. “The patient, in addition, has some mild sadistic impulsives, suggesting that many of his emotional relationships are colored by a tendency on his part to hurt other people emotionally. “Depression is moderate in intensity, a chronic disturbance in mood. “The man does not appear psychotic at this time. His paranoid posture toward reality is stable and constant and seems to have been with him for a long time. The mild to moderate depression is also stable and chronic.” . “Conversion” has been defined as “[a] freudian term for the process by which emotions become transformed into physical (motor or sensory) manifestations.” Dorland’s Illustrated Medical Dictionary (24tli ed. 1965). . “[A] ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). . “The term ‘disability’ means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). . The reports of the other physicians and consultants were mentioned as background in the decision of the Appeals Council but do not appear to have figured in the final assessment of Hassler’s mental condition. Dr. Engel was misquoted in the decision as recognizing “that tlie claimant might have a psychological overlay.” I)r. Engel actually reported, as noted hereinbefore, that “[tlhere is a tremendous amount of psychological overlay.” . IVe are not unmindful of a general reluctance on the part of physicians to evaluate either physical or mental disabilities in percentage terms. The inherent difficulty of so doing is illustrated in the i>resent case. Two inches sliced off the top of a six foot person’s beat! would be percentagewise less than 3% of the person as a whole but would no doubt be fatal in its consequences to that person. It is for that reason that we place primary reliance not on an estimated percentage of impairment but on the culmination of the evaluation of disability as it is contained in the prognosis. The Secretary’s decision ignores this crucial, and in our opinion, controlling portion of Dr. Kooiker’s report. . On this appeal, the Secretary stated in his brief in referring to the possibility of a conflict between Dr. Ooursey’s statement and Dr. Kooiker’s diagnosis, that “the Secretary was amply justified in resolving that conflict by relying upon the diagnosis of the psychiatric specialist, which was based upon his own thorough examination and tests, and upon the reports of examinations by two specialists in psychology.” . Dr. Kooiker also noted that psychiatric treatment would be useless in Hassler’s case: “The patient does not see himself as having personality or emotional problems of any sort. Consequently, the offer of psychiatric help and support would be largely an empty gesture to which the patient would undoubtedly be unreceptive.” . Hassler also argued, on appeal, that the Secretary, having found Hassler to be moderately disabled, failed to describe sufficiently the jobs which the claimant could perform. Since we find that the evidence indicates that Hassler was wholly disabled, we need not reach this second issue. 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_counsel1	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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party The PEOPLE of the Territory of Guam, Plaintiff-Appellee, v. Carlos B. CEPEDA, Defendant-Appellant. No. 87-1294. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 17, 1988. Decided July 27, 1988. Howard Trapp, Agana, Guam, for defendant-appellant. Elizabeth Barrett-Anderson, Atty. Gen., Raymond T. Johnson II, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee. Before GOODWIN, Chief Judge, and AL-DISERT and NORRIS, Circuit Judges. Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation. ALDISERT, Circuit Judge: The major question for decision in this appeal from the Appellate Division of the District Court of Guam is whether the Superior Court of Guam’s improper admission into evidence of nonexpert opinion testimony constituted harmless error. Appellant Carlos Cepeda was indicted by a territorial grand jury on eight counts of theft, four counts of forgery, and one count of inducing false testimony. He was tried before the Superior Court of Guam and convicted by a jury on all counts. The trial court imposed an extended term of imprisonment of 20 years for the theft counts, to run concurrently with a six-month sentence for inducing false testimony and four four-year sentences for forgery. The Appellate Division of the District Court of Guam affirmed Cepeda’s convictions and sentence. We will reverse. Jurisdiction in the Appellate Division was proper under 48 U.S.C. § 1424-3(a). Our jurisdiction on appeal is proper based on 48 U.S.C. § 1424-3(c). Cepeda timely filed his notice of appeal under Rule 4(b), Fed.R. App.P. I. Cepeda was employed as a loan officer by the Guam Economic Development Authority (GEDA) during 1982 and 1983. The jury found that he used this position to steal in excess of $36,000 of government funds. The government alleged that between June 19, 1982, and June 9, 1983, Cepeda obtained checks made out to various individuals and solicited Juan Cruz and others to cash the checks for him in exchange for $60 or $100. Eight checks were involved, each for an amount in excess of $1500. The government further alleged that on four separate occasions between September 25-30, 1983, Cepeda forged loan documents and used them to initiate processing of the GEDA checks. He was also accused of inducing Cruz to lie to investigators about who had given him the GEDA checks. Under the Guam Code, the offense of theft is divided into various degrees. 9 Guam Code Ann. § 43.20(a)-(d). Theft constitutes a felony of the second degree if the amount involved exceeds $1500. Id. § 43.-20(a). “Theft not constituting a felony of the second or third degree or a misdemean- or is a petty misdemeanor.” Id. § 43.20(d). Title 8 Guam Code Ann. § 105.54 provides: When a defendant is charged with a crime which is distinguishable by degrees, the jury shall, upon a finding of guilt, also find the degree of the crime of which the defendant is guilty. If the jury agrees upon the guilt of the defendant but cannot agree upon the degree, it shall render that verdict, and the defendant shall be deemed guilty of the lowest degree of the crime charged. At trial, the jury was not requested to, nor did it determine, the degree of the eight counts of theft. The trial court’s special verdict slip did not require the jurors to determine whether the defendant was guilty of a felony, a misdemeanor, or a petty misdemeanor. However, the court pronounced sentence as if the jury returned a guilty verdict for second degree felony theft. On appeal, Cepeda contends that the trial court improperly allowed a government witness to offer lay opinion evidence based on samples of Cepeda’s handwriting, when the samples were supplied to the witness by government subpoena for the purpose of testifying at trial. In addition, he argues that the maximum degree of theft for which he could be deemed guilty was a misdemeanor, that there was insufficient evidence to sustain a conviction for inducing false testimony, and that the court abused its discretion in imposing a 20-year sentence for property crimes constituting his first offenses. II. We will first address the handwriting evidence question. At trial, the government called Raymond Rojas as its witness to determine whether Cepeda forged the signature of certain persons on various GEDA “Request for Funds and Order to Pay” forms. To enable Rojas to make this determination, the government obtained, by subpoena, samples of Cepeda’s handwriting and then forwarded them to Rojas for use at trial. Rule 901(b)(2) of the Guam Rules of Evidence provides that an appropriate authentication or identification by a non-expert witness “as to the genuineness of handwriting [is admissible if] based upon familiarity not acquired for purposes of the litigation.” 6 Guam Code Ann. § 901(b)(2) (emphasis added). The trial court determined that Rojas did not qualify as an expert witness, but admitted his testimony as a nonexpert. Whether Cepeda forged the signatures on the forms, a prelude to obtaining GEDA checks, was a critical issue in the forgery prosecutions. On the basis of the government’s direct examination of Rojas, the trial court, in its discretion, could have found him to be an expert witness in the area of handwriting analysis. But the trial court determined that Rojas was not a handwriting expert because “a high school graduate taking 80 hours of instructions, who testified in four grand jury cases, and no actual trials, certainly cannot qualify as an expert witness.” TT, vol. 2, at 133. Rojas was an investigator for the forgery division of the Guam Department of Public Safety for approximately eleven years and had dealt primarily with questioned documents throughout his career. He received 80 hours of training from the Secret Service and the Federal Bureau of Investigation, and was the only police officer at the Department of Public Safety who was involved in document examination. He had applied his training in 300 separate instances involving questioned documents. During his testimony at trial, Rojas showed a thorough familiarity with and an ability to apply the basics of document examination: circumstances surrounding the writing, writing skill, handwriting format, letter sizes, upstrokes and downstrokes, and sketching. ER at 19-21; see E. Cleary, McCormick on Evidence § 221, at 689-91 (3d ed. 1984) (discussing authentication of writings through proof of handwriting). Yet a trial court has wide discretion in determining whether a witness is qualified to testify as an expert. See United States v. Marabelles, 724 F.2d 1374, 1381 (9th Cir.1984); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1880). Here, the trial court was not impressed by Rojas’ experience during his tenure with the Department of Public Safety. The court also equated expertise with formal education and the number of times an individual has testified at trial. The Appellate Division disagreed with the trial court’s determination as to Rojas’ lack of expert witness status, stating that “this court would have found Rojas to be an expert in handwriting analysis.” E.R. at 54. The Appellate Division, however, ruled that the court did not abuse its discretion on the qualifications issue. It did determine that the trial court committed error in allowing Rojas to offer his lay opinion into evidence, because Rojas had obtained his familiarity with Cepeda’s handwriting for the purpose of testifying at trial. It explained that Guam Rule of Evidence 901(b)(2) precludes nonexpert testimony as to the genuineness of handwriting if based on familiarity “acquired for purposes of the litigation.” We agree that the trial court erred in interpreting Rule 901(b)(2) by admitting Rojas’ nonexpert testimony notwithstanding the manner in which he received the handwriting exemplars that formed the basis of his opinion. It is unquestioned that Rojas’ familiarity with Cepeda’s handwriting was in fact “acquired for purposes of the litigation.” Rojas obtained the handwriting exemplars by government subpoena (1) after the grand jury returned the indictment against the appellant, and (2) for the sole purpose of testifying at Cepe-da’s trial. Notwithstanding this clear violation of Rule 901(b)(2), however, the Appellate Division determined that the trial court’s error was harmless “in that it did not effect the ultimate outcome of the case.” E.R. at 55. On appeal, Cepeda argues that the Appellate Division erred in ruling that Rojas’ nonexpert testimony was harmless error. The issue joined by the parties by brief and oral argument is clear, and allows us no leeway to consider other possibilities to validate the reception of the Rojas testimony. The litigants have presented solely a question of law: did the Appellate Division err in determining that the trial court’s error was harmless? We apply a de novo standard in reviewing interpretations of Guam law made by the Appellate Division of the District Court of Guam. Territory of Guam v. Yang, 850 F.2d 507 (9th Cir.1988) (en banc). III. Cepeda does not base his argument on the due process clause of the United States Constitution. He does not ask us to apply the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), even though it probably would have been more generous to him: In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), this Court rejected the argument that errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman, “we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Rose v. Clark, 478 U.S. 570, 576-78, 106 S.Ct. 3101, 3104-06, 92 L.Ed.2d 460 (1986); see Satterwhite v. Texas, — U.S. —, —, 108 S.Ct. 1792, 1795-97, 100 L.Ed.2d 284 (1988). Rather, Cepeda adheres to the deep-rooted doctrine that a federal court will not pass on constitutional questions unless such adjudication is unavoidable. Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2682-83, 65 L.Ed.2d 784 (1980); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). He relies on the teachings of United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir.1977), where we noted that “[ejrrors in such matters as ... rulings on the admissibility of evidence where Fourth Amendment claims are not involved ... have been considered ‘non-constitutional.’ ” In such cases, an appellate court must reverse the defendant’s conviction unless it is more probable than not that the error did not materially affect the verdict. Id.; see also 8 Guam Code Ann. § 130.50(a) (errors not affecting a substantial right of the party shall be disregarded). In the case at bar, Cepeda did not confess to forging the forms, and he made no admission inferring that he did. No eyewitnesses testified that he forged the forms. Instead, the government linked Cepeda to the forgeries essentially through Rojas’ testimony: Q Now is the analysis that you have made based solely on those individual characteristics which you have mentioned in Mr. Cepeda’s handwriting? A Right. Q And is there any doubt in your mind that it was he who wrote it? THE WITNESS: That Mr. Cepeda did write these documents? MR. PEREZ-SELSKY: The four documents in question, yes. THE WITNESS: I have no doubt that Mr. Cepeda did write the documents. ER at 22. The Rojas testimony was, therefore, critical to the government’s forgery case against Cepeda. Other than opportunity to perform the illegal act and access to the GEDA forms, there was insufficient evidence linking him to the crime of forgery. Under these circumstances, we will not conclude that it was more probable than not that the Rojas testimony did not affect the jury’s verdict. Accordingly, we decide that the reception of Rojas’ opinion as a nonexpert witness was reversible, and not harmless, error, thereby entitling Cepeda to a new trial. As we are unable to conclude that this evidence did not influence the jury’s verdict on the other counts of the indictment, we will order a new trial on all counts. Lies v. Farrell Lines, Inc., 641 F.2d 765, 773-74 (9th Cir.1981) (appellate court has broad discretion to grant new trial on all or only some issues); see Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931). IV. Because we are ordering a new trial, we need not address Cepeda’s contentions as to the length of sentence and the alleged error in sentencing on a felony rather than a misdemeanor. Double jeopardy considerations, however, require that we address Cepeda’s remaining contention that he was entitled to a judgment of acquittal on the charge of inducing false testimony. The double jeopardy clause of the fifth amendment “protects against a second prosecution for the same offense after acquittal.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). If, in the first trial, Cepeda was entitled to a judgment of acquittal on the charge of inducing false testimony, the government is barred in the new trial from prosecuting him on the same charge. We conclude that the government is not so barred. Cepeda argues that there was insufficient evidence to support the count charging a violation of 9 Guam Code Ann. § 52.50, which provides: A person is guilty of a misdemeanor if he attempts to induce any person to give false testimony in or to withhold testimony from any official proceeding to which he has been or may be properly called as a witness, or to fail to attend any official proceeding to which he has been lawfully called as a witness. The Appellate Division determined that there was sufficient evidence under Guam law to support the charge in the indictment. On appeal, our standard of review is de novo. Territory of Guam v. Yang, 850 F.2d 507 (9th Cir.1988) (en banc). Sufficient evidence exists for a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986), cert. denied, — U.S. —, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). Reversal is required only when “no rational trier of fact could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. at 2788. The grand jury’s indictment charged that between September 25-30,1983, Cepeda attempted to induce Juan Cruz to give false testimony regarding the receipt of GEDA checks in any official proceedings to which Cruz was called as a witness. ER at 4. At trial, Cruz testified that: Carlos [Cepeda] came into my room and he took his wallet out. He was taking out a piece of paper which he took out from a newspaper, a picture. The picture was that of the late John Tuncap. He told me that in case someone asks about the checks, for me to say that it was Tuncap who has been giving me the checks. TT, vol. 2, at 37-38. The question for decision is whether the words of this statement allow a rational trier of fact to conclude that Cruz was induced to give “false testimony in or to withhold testimony from any official proceeding” in which he was properly called as a witness. In Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 118 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981), the court stated: Inferred factual conclusions based on circumstantial evidence are permitted only when, and to the extent that, human experience indicates a probability that certain consequences can and do follow from the basic circumstantial facts. The inferences that the court permits the jury to educe in a courtroom do not differ significantly from inferences that rational beings reach daily in informally accepting a probability or arriving at a conclusion when presented with some hard, or basic evidence. A court permits the jury to draw inferences because of this shared experience in human endeavors. We have little difficulty in concluding that a reasonable jury could have inferred from Cruz’ statements that Cepeda attempted to induce Cruz to give false testimony to anyone inquiring about the origin of the GEDA checks — including individuals asking questions in official proceedings to which Cruz might be called as a witness. Viewing the evidence in the light most favorable to the government, Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, we agree with the Appellate Division that the government presented sufficient evidence to convict Cepeda under section 52.50 for inducing false testimony. Because Cepeda was not entitled to a judgment of acquittal, the government may properly prosecute him in the new trial on this charge. V. For the reasons set forth, we will reverse the judgment of the District Court of Guam, Appellate Division, and remand this cause with a direction that the proceedings be returned to the Superior Court of Guam for a new trial on all counts. REVERSED. 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:
sc_petitionerstate	51	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. STATE BOARD OF INSURANCE et al. v. TODD SHIPYARDS CORP. No. 144. Argued March 21, 1962. Decided June 25, 1962. Bob E. Shannon and Fred B. Werkenthin, Assistant Attorneys General of Texas, argued the cause for petitioners. With them on the briefs were Will Wilson, Attorney General, C. K. Richards and Coleman Gay III, Assistant Attorneys General. Charles R. Vickery, Jr. argued the cause for respondent. With him on the briefs was Frank A. Liddell. Cloyd Laporte and John Mason Harding filed a brief for the Church Fire Insurance Corp. et ah, as amici curiae, urging affirmance. Jack P. F. Gremillion, Attorney General of Louisiana, filed a brief for the State of Louisiana, as amicus curiae, urging reversal. Mr. Justice Douglas delivered the opinion of the Court. When we held in United States v. South-Eastern Underwriters Assn., 322 U. S. 533, that the modern business of insurance was “interstate commerce,” we put it in a category which Congress could regulate and which, if our prior decisions controlled, could not in some respects be regulated by the States, even in absence of federal regulation. See Frankfurter, The Commerce Clause (1937); Rutledge, A Declaration of Legal Faith (1947). Congress promptly passed the McCarran-Ferguson Act, 59 Stat. 33, 15 U. S. C. § 1011, which provided that the regulation and taxation of insurance should be left to the States, without restriction by reason of the Commerce Clause. Subsequently, by force of the McCarran-Fergu-son Act, we upheld the continued taxation and regulation by the States of interstate insurance transactions. Prudential Ins. Co. v. Benjamin, 328 U. S. 408. Prior to the South-Eastern Underwriters decision, we had given broad scope to local regulation of the insurance business. Osborn v. Ozlin, 310 U. S. 53; Hoopeston Canning Co. v. Cullen, 318 U. S. 313. The Osborn case upheld a Virginia requirement that insurance companies authorized to do business in that State must write policies through resident agents. The Hoopeston case, while it involved the making of out-of-state insurance contracts, also involved servicing of policies in New York, the regulating State. Here, unlike the Osborn and Hoopeston cases, the insurance companies carry on no activities within the State of Texas. Of course, the insqred does business in Texas and the property insured is located there. It is earnestly argued that, unless the philosophy of the Osborn and Hoopeston decisions is to be restricted, the present Texas tax on premiums paid out-of-state on out-of-state contracts should be sustained. We are urged to follow the approach of the Osborn and Hoopeston decisions, look to the aspects of the insurance transactions taken as a whole, and decide that there are sufficient contacts with Texas to justify this tax under the requirements of due process. Were the Osborn and Hoopeston cases andthebarebones of the McCarran-Ferguson Act our only criteria for decision, we would have presented the question whether three prior decisions — Allgeyer v. Louisiana, 165 U. S. 578; St. Louis Cotton Compress Co. v. Arkansas, 260 U. S. 346; Connecticut General Life Ins. Co. v. Johnson, 303 U. S. 77 — have continuing vitality. The first two were distinguished in the Osborn (310 U. S., at 66-67) and Hoopeston (318 U. S., at 318-319) cases. The Allgeyer case held that Louisiana by reason of the Due Process Clause of the Fourteenth Amendment could not make it a misdemeanor to effect insurance on Louisiana risks with an insurance company not licensed to do business in Louisiana, where the insured through use of the mails contracted in New York for the policy. The St. Louis Cotton Compress case held invalid under the Due Process Clause an Arkansas tax on the premiums paid for a policy on Arkansas risks, made with an out-of-state company having no office or agents in Arkansas. The Connecticut General Lije Insurance case held invalid under the Due Process Clause a California tax on premiums paid in Connecticut by one insurance company to another for reinsurance of life insurance policies written in California on California residents, even though both insurance companies were authorized to do business in California. The Court stated: “All that appellant did in effecting the reinsurance was done without the state and for its transaction no privilege or license by California was needful. The tax cannot be sustained either as laid on property, business done, or transactions carried on within the state, or as a tax on a privilege granted by the state.” 303 U. S., at 82. The Texas Court of Civil Appeals, 340 S. W. 2d 339. and the Texas Supreme Court, feeling bound by these decisions, held the tax on premiums unconstitutional, 162 Tex. 8, 343 S. W. 2d 241. We granted certiorari, 368 U. S. 810. The insurance transactions involved in the present litigation take place entirely outside Texas. The insurance, which is principally insurance against loss or liability arising from damage to property, is negotiated and paid for outside Texas. The policies are issued outside Texas. All losses arising under the policies are adjusted and paid outside Texas. The insurers are not licensed to do business in Texas, have no office or place of business in Texas, do not solicit business in Texas, have no agents in Texas, and do not investigate risks or claims in Texas. The insured is not a domiciliary of Texas but a New York corporation doing business in Texas. Losses under the policies are payable not to Texas residents but to the insured at its principal office in New York City. The only connection between Texas and the insurance transactions is the fact that the property covered by the insurance is physically located in Texas. We need not decide de novo whether the results (and the reasons given) in the Allgeyer, St. Louis Cotton Compress, and Connecticut General Life Insurance decisions are sound and acceptable. For we have in the history of the McCarran-Ferguson Act an explicit, unequivocal statement that the Act was so designed as not to displace those three decisions. The House Report stated: “It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court, as, for instance, in Allgeyer v. Louisiana (165 U. S. 578), St. Louis Cotton Compress Co. v. Arkansas (260 U. S. 346), and Connecticut General Insurance Co. v. Johnson (303 U. S. 77), which hold, inter alia, that a State does not have power to tax contracts of insurance or reinsurance entered into outside its jurisdiction by individuals or corporations resident or domiciled therein covering risks within the State or to regulate such transactions in any way.” H. R. Rep. No. 143, 79th Cong., 1st Sess., p. 3. Senator McCarran, after reading the foregoing part of the House Report during the Senate debate, stated, “. . . we give to the States no more powers than those they previously had, and we take none from them.” 91 Cong. Rec. 1442. So, while Congress provided in 15 U. S. C. § 1012 (a) that the insurance business “shall be subject to the laws of the several States which relate to the regulation or taxation of such business,” it indicated without ambiguity that such state “regulation or taxation” should be kept within the limits set by the Allgeyer, St. Louis Cotton Compress, and Connecticut General Life Insurance decisions. The power of Congress to grant protection to interstate commerce against state regulation or taxation (.Bethlehem Steel Co. v. State Board, 330 U. S. 767, 775-776; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 235-236) or to withhold it (In re Rahrer, 140 U. S. 545, 560 et seq.; Prudential Ins. Co. v. Benjamin, supra) is so complete that its ideas of policy should prevail. Congress, of course, does not have the final say as to what constitutes due process under the Fourteenth Amendment. And while Congress has authority by § 5 of that Amendment to enforce its provisions (Ex parte Virginia, 100 U. S. 339; Monroe v. Pape, 365 U. S. 167), the McCarran-Ferguson Act does not purport to do so. We have, of course, freedom to change our decisions on the constitutionality of laws. Smith v. Allwright, 321 U. S. 649, 665. But the policy announced by Congress in the McCarran-Ferguson Act was one on which the industry had reason to rely since 1897, when the Allgeyer decision was announced; and we are advised by an amicus brief how severe the impact would be on small insurance companies should the old rule be changed. When, therefore, Congress has posited a regime of state regulation on the continuing validity of specific prior decision's (see Federal Trade Comm’n v. Travelers Health Assn., 362 U. S. 293, 301-302), we should be loath to change them. We have accepted the status quo in comparable situations. After this Court held in Southern Pacific Co. v. Jensen, 244 U. S. 205, that a State could not provide compensation to stevedores doing maritime work, Congress enacted the Longshoremen’s Act. See S. Rep. No. 973, 69th Cong., 1st Sess., p. 16; H. R. Rep. No. 1767, 69th Cong., 2d Sess., p. 20. In Davis v. Department of Labor, 317 U. S. 249, we took note of the passage of laws which “accepted the Jensen line of demarcation between state and federal jurisdiction” (id., at 256), which line we also accepted in spite of the fact that the Jensen case had become in the eyes of some a derelict in the stream of the law. In Toolson v. New York Yankees, Inc., 346 U. S. 356, 357, we refused to re-examine a prior decision holding baseball not to be covered by the antitrust laws, stating that “[t]he business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation.” In that case Congress had remained silent, not changing the law. Here Congress tailored the new regulations for the insurance business with specific reference to our prior decisions. Since these earlier decisions are part of the arch on which the new structure rests, we refrain from disturbing them lest we change the design that Congress fashioned. Affirmed. Mr. Justice Frankfurter took no part in the decision of this case. Mr. Justice White took no part in the consideration or decision of this case. 15 U. S. C. § 1011 provides: “Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.” 15 U. S. C. § 1012 provides, so far as relevant here: “(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.” 14 Vernon’s Tex. Civ. Stat., 1952 (Cum. Supp. 1961), Art. 21.38, § 2 (e) provides: “If any person, firm, association or corporation shall purchase from an insurer not licensed in the State of Texas a policy of insurance covering risks within this State in a manner other than through an insurance agent licensed as such under the laws of the State of Texas, such person, firm, association or corporation shall pay to the Board a tax of five per cent (5%) of the amount of the gross premiums paid by such insured for such insurance. Such tax shall be paid not later than thirty (30) days from the date on which such premium is paid to the unlicensed insurer.” Supra, note 1. As we stated in Prudential Ins. Co. v. Benjamin, supra, at 434: “The power oí Congress over commerce exercised entirely without reference to coordinated action of the states is not restricted, except as the Constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. Its plenary scope enables Congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons. That power does not run down a one-way street or one of narrowly fixed dimensions. Congress may keep the way open, confine it broadly or closely, or close it entirely, subject only to the restrictions placed upon its authority by other constitutional provisions and the.requirement that it shall not invade the domains of action reserved exclusively for the states.” Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_respond1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. William F. GRUBB, III, Administrator, CTA of the Estate of Major William F. Grubb, Jr., USA, Ret., Deceased, Plaintiff-Appellee, and Lily S. Grubb, Plaintiff, v. UNITED STATES of America, Defendant-Appellant. No. 88-3003. United States Court of Appeals, Fourth Circuit. Argued Nov. 3, 1988. Decided Oct. 23, 1989. Jerome Anthony Madden (John R. Bolton, Asst. Atty. Gen., Washington, D.C., Vinton Devane Lide, U.S. Atty., Columbia, S.C., Jeffrey Axelrad, Director, Torts Branch, Civ. Div., U.S. Dept, of Justice, Washington, D.C., on brief), for defendant-appellant. William Paul Harper, Jr. (Hardee & Harper, Raleigh, N.C., R. Frank Plaxco, Leath-erwood, Walker, Todd & Mann, Greenville, S.C., Robert R. Smiley, III, Smiley & Mi-neo, Charleston, S.C., on brief) for plaintiff-appellee. Before RUSSELL and PHILLIPS, Circuit Judges, and KNAPP, United States District Judge for the Southern District of West Virginia, sitting by designation. DONALD RUSSELL, Circuit Judge: This is a medical malpractice action by the administrator of the estate of a deceased retired military officer against the United States under 28 U.S.C. § 1346(b) and §§ 2671, et seq. It is the administrator’s contention that the decedent died as a proximate result of negligence during a heart operation performed by Commander Donal Billig at Bethesda Naval Hospital in Bethesda, Maryland. The United States admitted liability and the cause proceeded to trial on the sole issue of damages. The district judge made an award of pecuniary damages and funeral expenses in the amount of $119,966 and of solatium damages under Maryland law in the amount of $350,000. The United States does not appeal the pecuniary award but does appeal the solatium award on the grounds of (1) excessiveness and (2) the use of inadmissible evidence in arriving at the award. We reverse the judgment on the second ground and remand the cause to the district court for reconsideration of the award of solati-um damages. The deceased was at the time of his death almost 74 years of age. He entered the Army in March 1941 and retired in February 1964. After retirement, he was employed by the Raytheon Corporation until 1972, when he suffered a severe myocardial infarction. He was forced to retire from any civilian employment as a result of this heart condition. His chest pain and discomfort seem to have increased in the years after 1972. Finally, the discomfort became so unbearable that he decided to enter Bethesda Naval Hospital in Maryland for heart surgery in July 1984. After some preliminary examinations, he had coronary by-pass surgery. The supervising surgeon during the operation was Commander Donal Billig. Mr. Grubb did not recover consciousness after the operation and died on August 8, 1984. Mr. Grubb was survived by his wife of some 45 years and two children, both emancipated. The widow was a certified registered nurse anesthetist and had worked regularly as such until she reached the retirement age of 65. For a time after her husband’s death, Mrs. Grubb largely discontinued her work, experienced difficulty in sleeping, and lost weight. However, as the months passed, she began to adjust normally to her loss. The psychologist who interviewed her concluded that she, prior to the telephone call from Admiral McDermott, had achieved a “normal bereavement” recovery. She returned to work at the hospital where she had been previously employed. She undertook on behalf of the hospital certain antibiotic studies which she found quite interesting. She volunteered to resume anesthetical services at the hospital. To quote Mrs. Grubbs’ own words, she “was able to do some things at that time that I hadn’t been able to do in the first few months of Frank’s death.” Before her husband’s death, the two of them had planned a trip to Hawaii. She and a friend took that trip. In short, Mrs. Grubbs’ emotional condition following her husband’s death followed the path of a normal bereavement. There was nothing to warrant considering it as unusual. The event which the witnesses testified gave her case its unusual character justifying, in the opinion of the district court, a solatium award was a telephone call Mrs. Grubb received in June 1985, almost a year after her husband’s death. On that date, Admiral McDermott telephoned Mrs. Grubb from the Bethesda Hospital. Mrs. Grubb detailed the conversation: He said, this is Admiral McDermott from Bethesda Hospital. Did you know your husband had surgery at Bethesda Hospital? And I said, yes, I was there. He said, did you know Dr. Billig operated on him? I said, yes. He said, well, I’m giving you — let’s see, how was it — something to the effect, I’m telling you that we are responsible for his death. Dr. Billig is being court-martialed for manslaughter for his death. I’m advising you to get an attorney. I’m giving you permission to sue the United States government. I said, do you know that I am a C.R.N.A.? And he said, no, I do not but if you are a C.R.N.A., then you can appreciate the gravity of this situation. And I said, I knew that there was something that just didn’t ring true in the autopsy report. And I had just gotten that autopsy report about a month or so before that. It was a long time coming. And he said, yes, there is a lot wrong there. Mrs. Grubb pictured this conversation as “the cruelest thing that anybody could ever do to somebody.” She added that “after I found out what happened, I just went to pieces, that’s all.” Dr. Kirsch quoted Mrs. Grubb as having indicated in her interview with him that “that telephone call really put her in quite an emotional turmoil.” As a result of his interview, Dr. Kirsch concluded “that that [Le., the telephone call] is the stressor and the traumatic event which has been causing this lady her difficulties.” The psychiatrist, Dr. Dillingham, stated that Mrs. Grubb told him that: She was bereaved and depressed in the Fall following her husband’s death. But she said to me that she was getting over that just prior to learning about the manner of his death, that she was able to cope and she was making — she was feeling like she was making progress in getting back to normal. But, then, upon learning that he had been — he had died as a result of the coronary artery being ligated, or so she told me, that there was a resurgence of and worsening of her distress that actually exceeded the distress of when he first died. He concluded that until the telephone call from Admiral McDermott, Mrs. Grubb’s bereavement following her husband’s death “was not anything out of the ordinary, that one would expect — well, it was — she was bereaved, but it was to the — you know, it was an understandable grief, an understandable feeling of depression.” In his opinion, she had a resurgence of a depression as a result of “the news that her husband had died as a result of this physician’s actions.... ” Mrs. Grubb’s son supported this view. He testified that his mother “was handling the grieving or bereavement that you would expect to follow the loss of a spouse.” He added that for the six months following her husband’s death, he “felt she was improving,” she had gone back to work, she was concentrating “on something she loved to do, her job,” and her work took “her mind off my father’s death”; and “[t]hat was true up until the time she got the phone call from Admiral McDermott of Bethesda informing her of my father’s death.” On this record, the district court made its award. It gave pecuniary damages for the death of Mr. Grubb in the sum of $117,996, but awarded $350,000 for solatium, payable solely to the widow. In making the solati-um award, it looked to the Maryland statute which provides “for the death of a spouse,” an award on account of “mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.” Md. Code Ann. Courts and Judicial Proceedings § 3-904(d). In arriving at this award for solatium, the district judge relied substantially on the testimony of the “mental turmoil” allegedly suffered by Mrs. Grubb as a result of Admiral McDermott’s telephone conversation with her. This is apparent in the Court’s reasoning justifying the award. In its justification of the solatium award, it stressed Dr. Kirsch’s testimony that “the precipitation of Mrs. Grubb’s observed depression” was the “telephone call from the Navy.” It added: At the time of his examination, Dr. Kirsch diagnosed Mrs. Grubb as suffering from post-traumatic stress disorder, chronic: major depression. The disorder diagnosed by Dr. Kirsch is distinguishable in part from a diagnosis of uncomplicated bereavement — a psychiatric term contained in Diagnostic and Statistical Manual of Mental Disorders, III — by a determination of chronicity. A condition is defined as being chronic if it lasts six months or longer. Dr. Kirsch identified the precipitator of Mrs. Grubb’s observed depression as being a telephone call from the Navy which notified Mrs. Grubb of the Navy’s investigation in the circumstances of Major Grubb’s death. Since Dr. Kirsch’s examination occurred within six months from the receipt of this telephone call, June 1985, he was unable at the time of examination to classify Mrs. Grubb’s condition as being chronic. He did refer her to a psychiatrist. The psychiatrist’s examination is not before the court. Dr. Kirsch did not see Mrs. Grubb after his last testing date in September 1985. (Italics added.) At another point the district court, in its opinion, found: With regard to the losses arising out of her own grief and mental distress, the court finds Mrs. Grubb was in many ways, in a uniquely vulnerable position. As a nurse anesthetist she has spent a lifetime in operating rooms. She had, accordingly, far more than a layman’s understanding of this area of medicine and was involved, consequently, to a far greater degree in her husband’s decision to submit to open heart bypass surgery. She attended him closely at Bethesda and though not present during the operation, was certainly as aware of the events which transpired as one could be under the circumstances. Thus his death was especially difficult to accept. Aggravating this injury, which produced acute depression and post traumatic stress syndrome, was the news that her husband had died as a result of Dr. Billig’s negligence, which came in the form of a telephone call from Admiral McDermott a little less than one year after his death. The court concludes that it is entirely foreseeable that such an event and such news would aggravate the depression she would normally be expected to experience. Such was the district court’s ruling on the solatium award. The Government’s first objection to the solatium award focuses on what it characterizes as the excessiveness of the award. It marshals all the earlier Maryland solati-um awards. In none of those cited by it had there been an award greater than $125,000. In D’Angelo v. United States, 456 F.Supp. 127 (D.Del.1978) (decided under Maryland law as was this case), aff'd, 605 F.2d 1194 (3d Cir.1979), there was, for instance, a solatium award of $75,000 to the widow. In that case, the deceased and his wife had been married for 25 years. It was found to be a “happy” marriage by the court, a marriage which had been favored by the birth of eight children, ranging in age from five to twenty-one years. The family was described as “close-knit.” The court said: Obviously, the death of Mr. D’Angelo was a terrible shock to his wife. Initial disbelief gave way in Mrs. D’Angelo to lingering feelings of emptiness and loneliness. Faced with the prospect of raising their seven remaining children on her own, Mrs. D’Angelo has demonstrated remarkable fortitude throughout this ordeal. It is clear, however, that this tragedy has inflicted a deep emotional wound upon her. Manifestly, the shock, the trauma, and the emotional wound were more appealing of relief in the D’Angelo case than in this case, yet the party received little more than 20% of the award made to the widow here. As we have seen, there was nothing unusual about the widow’s bereavement following the death of her husband in this case. Unquestionably, the death of her husband was distressing, though it is difficult to believe that, considering her husband’s age and years of recurrent heart trouble, it was unexpected. The widow, however, had adjusted normally to her husband’s death in the months after his death. The widow had resumed working; she had, as we have said, taken a vacation in Hawaii. The real basis for the district court finding anything especially demanding of a large and extraordinary solatium award was not so much the death of Mr. Grubb but, according to the appellee and the district court, a separate event that occurred almost a year after the death of the husband. That separate event was the telephone call of Admiral McDermott to Mrs. Grubb. In the telephone call, Admiral McDer-mott was not ungentlemanly or discourteous or even unfeeling, so far as this record shows. By his call he manifestly sought to be helpful. Admiral McDermott told Mrs. Grubb that the Navy had concluded that her husband had died because of the negligence of the operating surgeon, Commander Billig, and that the Commander was to be court-martialed for such action. He added that the Navy admitted negligence and he advised her to file her claim promptly, which, incidentally, she did the next month. Unquestionably the Admiral, with the Navy’s admission of liability, saved the administrator in this case the problem of proving negligence as a basis for a claim. That admission was based on the Admiral’s expectation that the court-martial would find Commander Billig negligent. Had that admission not been made and the administrator been forced to prove negligence, he may have suffered the same fate as had another claimant who sought recovery of the United States on account of the alleged negligence of Commander Billig. See Wachter v. United States, 877 F.2d 257 (4th Cir.1989). This conclusion is reenforced by the later reversal of Dr. Billig’s court-martial conviction in connection with Mr. Grubb’s death. The initial court-martial verdict which was adverse to Dr. Billig was later reversed by an en banc opinion of the U.S. Navy-Marine Corps Court of Military Review. That opinion of the en banc court, which was rendered about six months after the district court’s opinion in this case, is summarized in this paragraph: It bears repeating that Dr. Haggerson and not Dr. Billig was the primary surgeon and actually performed the suturing complained of by the Government as being the cause of Major Grubb’s death. While the prosecution introduced a great deal of evidence in an attempt to show the failings of Dr. Haggerson’s surgical technique, they produced no evidence to show that Dr. Billig failed in his role as a supervisor. In fact, the record reflects that the saphenous vein selected for the bypass, while somewhat phlebosclerotic, was checked for adequate lumen and judged to be acceptable, and that the grafts sutured by Dr. Haggerson were tested prior to closure by means of both inserting probes into the graft and by flushing cardioplegia solution through the newly constructed bypass, with good results. We simply see no negligent act on Dr. Billig’s part that had anything to do with the death of the patient. In this opinion the Court also observed that Dr. Billig performed 73 by-pass operations while at Bethesda. The first was unsuccessful, but the 72 operations by Dr. Billig which followed were all successful, leading the Court to say: If he [Dr. Billig] could adequately perform this many consecutive open-heart surgeries requiring the intricate sewing of small veins and arteries, then his vision was either adequate for the job at hand or, even if his vision was seriously impaired in one eye, it did not materially affect his performance in the operating room. Nor was the news which was given to Mrs. Grubb by Admiral McDermott something that Mrs. Grubb had herself not suspected earlier. Mrs. Bader (the intimate friend of Mrs. Grubb and, like Mrs. Grubb, a certified anesthetic nurse) and Mrs. Grubb reviewed the Navy’s autopsy report on the death of Mr. Grubb which Mrs. Grubb had received from the Navy. They studied it and they both agreed that it was “hard to believe that the surgeon or his assistant wasn’t able to pick up that he was making an error.” Based on her study of the autopsy report, Mrs. Bader concluded that the surgeon operating on Mr. Grubb who had made the hook-up for the bypass had “put it into such a small vessel that the blood was unable to flow through” and that was really “the problem or part of the problem” that led to Mr. Grubb’s death. She discussed this conclusion with Mrs. Grubb. The subsequent call from Admiral McDermott, Mrs. Bader conceded, merely “confirm[ed] [the conclusions that she and Mrs. Grubb had already reached] that something had gone wrong during the surgery and they [referring to the surgeon] did not pick it up.” It is difficult to understand how, under the circumstances, Mrs. Grubb was so taken aback or shocked by the information she received from Admiral McDermott, information which simply “confirm[ed]” what Mrs. Grubb and her friend Mrs. Bader had already decided. We recognize that Mrs. Grubb testified that the telephone call from Admiral McDermott was “the cruelest thing that anybody could ever do to somebody.” However, Mrs. Grubb identified nothing in Admiral McDermott’s conduct which indicated callous indifference to her feelings. We repeat that, so far as the record shows, Admiral McDermott’s language was not cold and did not betray an unfeeling attitude on his part. Almost a year had elapsed since Mr. Grubb’s death. No claim had been filed against the Government for his death. Admiral McDermott called the party who would be most interested in such claim to advise her that she had a just claim for pecuniary damages and to suggest that she employ counsel and file her claim. To read cruelty or outrageous conduct out of that action by Admiral McDer-mott is, it seems to us, unfair. Beyond this, it is obvious that the telephone call was a separate event from the alleged negligence of Dr. Billig which, under plaintiffs theory, caused Mr. Grubb’s death. It was this telephone call, made almost a year after Mr. Grubb’s death, which the district court found justified in substantial part this large solatium award. All the witnesses in the case referred to the telephone call and the negligently-caused death as two separate events. The experts distinguished the effect of the two events on Mrs. Grubb. They diagnosed Mrs. Grubb’s condition after her husband’s death as involving the normal bereavement suffered by a wife because of the loss of a husband. It was the other event, the telephone call of Admiral McDermott, which, according to the testimony of all the plaintiff’s witnesses, put Mrs. Grubb in an “emotional turmoil” and was the “precip-itator” of her later depression and which gave the solatium case its unique appeal. The two events, separate both in time and character, gave rise to two separate claims, one for the death of Mr. Grubb in connection with which there was a solatium claim, and the other for negligent emotional distress for which, under Maryland law, there was no right of recovery. Hamilton v. Ford Motor Co., 66 Md.App. 46, 502 A.2d 1057 (1986). The plaintiff administrator, however, had filed a claim based on a single identified event; i.e., the death of Mr. Grubb was caused by the alleged negligence of Dr. Billig. He filed no other claim. Specifically, he filed none for emotional distress caused by Admiral McDermott’s telephone call. Absent such a filed claim, the plaintiff has no right of action under Section 1346(b) for any emotional distress caused by Admiral McDermott’s telephone call, which, so far as this record indicates, was entirely innocuous. The failure of the plaintiff to press any claim of emotional distress was undoubtedly because she or her attorneys knew that such an action was not sustainable either under Maryland law (see Hamilton, supra ) or under the Federal Tort Claims Act. Unless timely filed with the agency, no claim is maintainable under the Federal Tort Claims Act. We have made this clear in a number of cases, of which the leader is the oft-cited decision in Kielwien v. United States, 540 F.2d 676 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976). It does not comport with fairness or common sense that an event which cannot create an actionable cause of action under state law and which is not maintainable under the Tort Claims Act may be piggy-backed on another claim and thus become compensable. The district judge recognized this. When the plaintiff began to introduce evidence about the McDermott telephone call, the district judge declared: “If he [referring to Admiral McDermott] said something in his conversation that was cruel or — that’s not what she’s suing on.” He later added: “Were this being tried to a jury, I don’t think I would let it in. However, since it’s non-jury, I think I can keep everything in perspective as the factfinder in this case, so I am going to permit the question. I’m going to let it in for what it’s worth.” Yet, though he recognized that no claim had been filed for emotional distress caused by the McDermott telephone call, which under Kielwien is fatal to a claim by the plaintiff for emotional distress caused by the telephone call, the district judge proceeded to base in large part his solatium award on this “telephone call.” His rationale for such consideration was because it was “entirely foreseeable that such an event and such news would aggravate the depression she would normally be expected to experience.” We do not find this reasoning persuasive. The “telephone call” was clearly an “intervening” cause or event. It was not something reasonably to be foreseen. Particularly it was not foreseeable that the government would concede liability for • Mr. Grubb’s death, or that such concession would cause Mrs. Grubb’s distress and depression. The district judge clearly erred as a matter of law in considering the McDermott telephone call as an aggravating circumstance justifying a solatium award. The cause must, therefore, be remanded to enable the district court to arrive at a solati-um award which does not include any amount to compensate for such emotional distress as Mrs. Grubb sustained as a result of Admiral McDermott’s telephone call. The judgment below is reversed and the cause is remanded for further proceedings consistent with this decision. REVERSED AND REMANDED. . At the time testimony with reference to the McDermott telephone call was first injected into the case, the district court seemed to recognize that the suit was not on the telephone call. . One of the eight children was over 21 years of age and he was omitted for this reason. . The opinion of the Military Court is not included in the record of this case but was attached to the government's brief in this appeal. The opinion as reproduced by the government is not disputed by the appellee. The opinion deals with the court-martial of Dr. Billig for negligent medical practice in connection with Mr. Grubb’s operation, during which he died, and for which the plaintiff in this case seeks recovery. Precedent seems to justify our taking notice of these proceedings. See Shuttlesworth v. Birmingham, 394 U.S. 147, 156-57, 89 S.Ct. 935, 941-42, 22 L.Ed.2d 162 (1969); Morales-Alvarado v. Immigration & Naturalization, 655 F.2d 172, 174 (9th Cir.1981); Kamsler v. M.F.I. Corporation, 359 F.2d 752, 753 (7th Cir.1966). . The record supports the contention that the plaintiff originally filed to recover as a separate cause of action for emotional distress. This fact is evident in the original answer filed by the government where it is shown: “THIRD CAUSE OF ACTION (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS) C/A No. 6:86-687-17” Without objection this separate action was dismissed. The claim reappeared, however, as a substantial basis for the solatium award in this appeal. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:
songer_appbus	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. In re ELLESS CO. BLAIR et al. v. FINAN. No. 10707. United States Court of Appeals Sixth Circuit. May 2, 1949. Harold M. Shapero, and Edward T. Goodrich, both of Detroit, Mich., for appellants, Ben. O. Shepherd, of Detroit, Mich. (Ben O. Shepherd and John A. Hamilton, both of Detroit, Mich., on the brief), for appellee. Before SIMONS, McALLISTER and MILLER, Circuit Judges. McAllister, circuit judge. On April 12, 1938, the District Court for the Eastern District of Michigan entered an order confirming a plan of reorganization of The Elless Company, debtor, a Michigan corporation, under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. The Elless Company owned and operated the Whittier Hotel, a large residential and transient hotel overlooking the Detroit River. The premises were subject to trust mortgages securing bonds aggregating more than $3,300,000 and the company was indebted in considerable amounts of money to other creditors, which it was unable to pay. The plan of reorganization provided for a new company to take over the hotel and to issue its stock to the creditors, stockholders, and bondholders of the debtor. Holders of unsubordinated first mortgage bonds were to be allocated 90% of the stock and the balance of 10% was allocated to other creditors and to the stockholders of the debtor. The plan further provided that the 90% of the stock allocated to the mortgage bondholders was to be placed in a voting trust; that the trust was to have three trustees, to be appointed by the court; and that it was to continue for a period of eight years, terminating on May 1, 1946. Upon the approval of the plan by two-thirds of the creditors, as required by statute, the court confirmed it; a new Michigan corporation known as the Whittier Corporation, was organized, took title to the hotel, and issued the stock in accordance with the plan; and the trust agreement was carried out, the stock being placed in the voting trust for an eight-year period, and trustees of the voting trust, being appointed by the court. The order confirming the plan of reorganization provided: “This court reserves jurisdiction over the stock trust aforesaid and over the property of the new corporation and over the trustees from time to time acting as trustees under said trust agreement for the purpose of supervising the acts and doings of such trustees and appointing and removing them, and for the purpose in all respects of protecting and safeguarding the rights of the holders of trust certificates from time to time outstanding. Each and all of the holders and owners of trust certificates from time to time outstanding be, and they are hereby, forever jointly and severally enjoined from commencing or prosecuting any proceedings of any nature whatsoever against the new corporation or any of its property or against the trustees or any of them without first obtaining the approval of this court after due notice to all parties in interest. “The court reserves jurisdiction herein to enter such further orders as may hereafter be deemed necessary or proper in connection with the carrying out of the terms and provisions of the said plan of reorganization as approved and confirmed herein.” The trust agreement approved by the court provided: “This Trust Agreement shall terminate, in any event, on the 1st day of May, 1946, without notice by or to, or action on the part of the Trustees, or any other parties hereto, but it may be terminated at any earlier date by resolution of a majority of the Trustees, or by the Court, in the manner herein provided. * * * In case of termination by the Court, such termination shall become effective upon the entry of the order by the Court, or at such later date as shall be specified by the Court in such order.” Under the voting trust, it was provided that a majority of the trustees, with the approval of the court, could amend the trust agreement upon giving twenty days’ notice to stockholders of the proposed amendment, or modification, provided that it would not become effective if, within twenty days, holders of 25% of the stock certificates objected thereto, unless holders of 51% of the certificates consented thereto in writing. On February 28, 1946, the trustees filed a petition with the Court reciting that, acting under the foregoing provision, they had adopted a resolution amending the trust agreement by extending the term of the voting trust from May 1, 1946 to May 1, 1951. The petition asked the court to enter an order approving the execution of an instrument attached to the petition, amending the original voting trust agreement as to its term, and including the following new sections : “Section 1. This Trust Agreement shall terminate, in any event, on the 1st day of May, 1951, without notice by or to, or action on the part of the Trustees, or any other parties hereto, but it may be terminated at any earlier date by resolution of a majority of the Trastees, or by the Court, in the manner herein provided. * ;J< * * * * “In case of termination by the Court, such termination shall become effective upon the entry of the order by the Court, or at such later date as shall be specified by the Court in such order.” The district judge who entered the original order confirming the reorganization plan, thereupon entered an order approving the proposed amendment increasing the life of the voting trust for an additional five years until 1951, and directing notice to be given all certificate holders, and further ordered that after such notice had been given, the proposed amendment would become effective on April 3, 1946, unless on or before that date, the holders of certificates representing 25'% of the capital stock of the Whittier Corporation should advise the trustees in writing of their objection to, and dissent therefrom. It was further provided in the order: “That this court hereby reserves jurisdiction of this matter for the purpose of determining any and all controversies that may arise with respect to said proposed amendment and for the purpose of giving any instructions to- said Trustees that may be necessary or proper in connection with said proposed amendment.” Objections not having been made by the holders of the certificates before the date prescribed in the order approving the amendment, it was considered that the original trust agreement was, accordingly, amended and the term of the trust extended an additional five years. On May 20, 1947, however, appellee Fi-nan filed his petition to set aside the order of the court approving the extension of the term of the trust agreement, to discharge the trustees of the voting trust and terminate their authority, and to enjoin permanently such trustees from voting any of the stock confided to them by virtue of the trust. Among the reasons asserted in support of the petition were (1) that the order attempted to make effective an agreement in violation of Section 34 of Act 327 of the Public Acts of Michigan of 1931, which prohibits shareholders from entering into a voting trust agreement for a period exceeding ten years; (2) that the order attempted to make ineffective the provision of the articles of incorporation of the Whittier Corporation limiting the term, of the trust agreement to eight years; and (3) that the court lacked jurisdiction to enter the order because the plan of reorganization had been successfully consummated. Answer to the petition was filed by the Whittier Corporation and the trustees of the voting trust; and two holders of certificates, representing shares of stock of the corporation, were allowed to intervene and file answers. On the hearing, the district court entered a final order terminating the voting trust and directing the trustees to deposit with the depositary named in the trust agreement all assets, including the stock certificates evidenced by the trust certificates, and with authority to such depositary to deliver such assets, including the stock certificates in exchange for the trust certificates, to the persons entitled to receive them. It was further provided in the order that upon such deposit of certificates by the trustee for delivery to the owners, all liability of the trustees for the delivery thereof should cease, and the trustees would not be required to take any further action of any nature under the trust agreement. From this order, the Whittier Corporation, the trustees of the voting trust, the intervening petitioners, hereafter referred to as appellants, unite in one appeal. Petitioner Finan, hereafter referred to as appellee, appeals on grounds that the order of the court was inadequate in not granting sufficient relief. Appellants contend that the amendment extending the life of the voting trust was valid; that the termination of the trust by the court sua sponte was beyond its jurisdiction; and that even though its reserved jurisdiction was broad enough to authorize the termination of the trust, its action in terminating it was an abuse of discretion. The only reason given to the court by the trustees, in their petition, for approval of the amendment increasing the life of the voting trust was that they “believe that the only way in which the owners of small amounts of stock now in said Voting Trust can be adequately protected is by a continuance of the trust created by said agreement.” In confirming a plan of reorganization, the court may only retain jurisdiction in order to protect its decree, to prevent interference with the execution of the plan, and to aid otherwise in its operation, and may not, through the device of retaining jurisdiction, keep a debtor in tutelage. Towers Hotel Corp. v. Lafayette National Bank, 2 Cir., 148 F.2d 145. It is true that the court retains certain jurisdiction in a reorganization proceeding, after confirmation of a plan, to see that it is consummated. North American Car Corporation v. Peerless Weighing & Vending Mach. Corporation, 2 Cir., 143 F.2d 938. But any reservation of jurisdiction beyond what is requisite to effectuate a plan of reorganization is beyond the power of the reorganization court. Reese v. Beacon Hotel Corp., 2 Cir., 149 F.2d 610. See also In re Flatbush Ave. — Nevins St. Corporation, 2 Cir., 133 F.2d 760. The order extending the voting trust agreement was not necessary to effectuate the plan of reorganization. It was unnecessary for the protection of the original order confirming the plan, or to prevent interference with its execution. It was beyond the jurisdiction of the district court, acting through another judge in prior proceedings, to enter the order extending the life of the voting trust. Furthermore, the order of the court was in violation of the Michigan law limiting the term of a voting trust to ten years. See Appon, et al. v. Belle Isle Corp. et al., Del.Ch., 46 A.2d 749; Gaskill v. Gladys Belle Oil Co., 16 Del.Ch. 289, 146 A. 337. The plan of reorganization was adopted, the voting trust set up, and the voting trustees appointed by the court for one purpose — to relieve the debtor from the pressure of its obligations which would prevent it from operating, to reduce its indebtedness to an amount that would permit it to operate as a solvent corporation, and, upon this being accomplished, to liberate it from the supervision of the court. The original trust agreement of May 1, 1938, as well as the amendment thereto of February 28, 1946, provided that it might be terminated at any date before the date of termination therein provided by resolution of the majority of the trustees, or by the court, effective upon entry of its order or at such later date as should be therein specified. On the hearing of the petition of appellee Finan, it was admitted that the Whittier Corporation had a capital and surplus of $2,000,000, that it had no obligation except its stock, and that it was paying dividends to its stockholders. Two years before that time, in 1946, when the petition to amend the trust agreement was filed, it was in a similarly good financial condition. No question was raised concerning its ability to carry on as a successful business enterprise without the further aid of the court. In its opinion holding that the trust should be terminated, the district court declared that the purposes of the plan of reorganization had been completely and successfully consummated, and that it was clear that, while the court and the parties to the agreement contemplated that the purposes of the plan of reorganization would be accomplished in eight years, it was their intention that the trust should terminate before that time, whenever final consummation of its purposes was achieved. Since no showing had been made indicating the necessity for continuing the trust, the court declared that it should no longer keep the Whittier Corporation “under its guardianship” and sua sponte terminated the trust agreement and considered the petition as one to conclude finally the proceedings. We concur in this view and determination of the district court. The trust was established and the voting trustees were appointed by virtue of the order of the court in statutory reorganization proceedings with the purpose of enabling the corporation to operate as a solvent business enterprise. That purpose was fulfilled. “Since the purpose of reorganization clearly is to rehabilitate the business and start it off on a new and to-be-hoped-for more successful career, it should be the objective of courts to cast off as quickly as possible all leading strings which may limit and hamper its activities and throw doubt upon its responsibility. North American Car Corporation v. Peerless Weighing & Vending Mach. Corporation, supra [143 F.2d 940]. “Congress did not intend that the Bankruptcy Court should, after an approval of a plan under Chapter X, Bankr. Act, 11 U.S.C.A. § 501 et seq., have power to remain a wet-nurse to the reorganized company. A bankruptcy court cannot obtain that power merely by inserting a provision reserving jurisdiction.” In re Flat-bush Ave. Nevins St. Corporation, supra [133 F.2d 762], It is further contended that, assuming the order extending the term of the voting was' invalid, the court could not sua sponte order the termination of the trust, discharge the trustees, and enjoin them from voting the stock, since it was entirely within the province of the stockholders to continue voluntarily to leave their stock in the trust, permitting it to be voted by the voting trustees, and that they were free to withdraw from the voting trust at any time they so' desired. This overlooks the realities of the case. The voting trust came into being because of compulsion — a compulsion arising out of the insolvency proceedings. In its origin, the plan embodying the trust was to save the assets through the action of the court for the benefit of the bondholders,' stockholders, and creditors. They were forced by necessity to consent to the trust, and to the relinquishment of their rights to the1 voting trustees. Since the original purpose of the plan of reorganization' has been effected, each stockholder is entitled to vote his stock and enter into combinations for management or control unhindered and unobstructed by the voting trust combination that exists only through the order of the court. As was well said with respect to a somewhat similar situation, appellants, relying upon the inertia of the certificate holders, ''and the favorable provisions of the trust agreement which make non-action by the beneficiaries, approval of the action of the trustees, sought to use the assets and facilities of the trust to retain their control of the stock of the passive beneficiaries and force dissident beneficiaries to withdraw and place themselves among the minority stockholders. They are not entitled to that advantage. Upon the dissolution of the trust, all parties to it have the privilege of entering or abstaining from entering into a voting trust. A new voting trust requires affirmative action by each stockholder in entering into the agreement and depositing his stock. If all the stockholders are freed from the voting trust by its dissolution, the trustees would face a far more difficult task in forming a new trust and petitioner and others would be in a better situation to organize a more favorable combination or voting trust. See Olson v. Rossetter, 330 Ill.App. 304, 71 N.E.2d 556, 563, affirmed 399 Ill. 232, 77 N.E.2d 652. While appellee did not, in his petition, ask the court to terminate the trust agreement, he did challenge the validity of the order extending the trust, and asked for an order to show cause why the trustees ihould not be discharged, their authority under the voting trust terminated, and that they be permanently enjoined from voting any of the stock which they held as trustees. Under the petition, as well as under all of the other circumstances of the case, t was proper for the court sua sponte to consider the petition as one to conclude finally the proceedings, and to terminate the trust agreement. In terminating the trust and finally concluding the proceedings, the court had the power to determine all matters with respect to the trustees theretofore appointed by it by virtue of the statutory provisions. Since it appeared that the trustees would continue to vote the stock in the voting trust, even after termination of the trust by the court, the order should have included provision, in accordance with petitioner’s request, that the trustees be discharged and that they be enjoined from further voting of the stock in the voting trust. In accordance with' the foregoing, the case is remanded to the district court for entry of an order consonant with this opinion. 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_othadmis	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". PHILADELPHIA & READING CORPORATION, Appellant, v. UNITED STATES of America, Appellee. No. 90-3520. United States Court of Appeals, Third Circuit. Argued Jan. 22, 1991. Decided Sept. 4, 1991. Edward B. Maxwell, II, Young, Cona-way, Stargatt & Taylor, Wilmington, Del., and Frederic L. Hahn, Glen H. Kanwit (argued), David B. Goroff, Hopkins & Sutter, Chicago, Ill., for appellant. Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, John A. Dudeck, Jr., David English Carmack, Teresa T. Milton, Ernest J. Brown (argued), U.S. Dept, of Justice, Tax Div., Washington, D.C., and William C. Carpenter, Jr., U.S. Atty., Wilmington, Del., for appellee. Before BECKER and HUTCHINSON, Circuit Judges, and SMITH, District Judge Hon. D. Brooks Smith, District Judge of the United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT. HUTCHINSON, Circuit Judge. Philadelphia & Reading Corporation (taxpayer) appeals from a final order of the United States District Court for the District of Delaware granting summary judgment in favor of the United States (government) in the taxpayer’s action for a tax refund totalling more than $10,000,000.00. The claimed refund is for taxes paid under assessments that both the taxpayer and the government recognize were illegal. However, the district court accepted the government’s argument that equitable considerations required the rejection of the taxpayer’s refund claim. The court held it would be inequitable to grant the taxpayer’s refund claim for three reasons. First, the statute of limitations on assessment of taxes against the taxpayer had run on all the taxable years in question. Second, the record showed that the taxpayer would not have contested the government’s computations showing it owed net tax deficiencies of about $4,060,-000.00 for the years in question. Third, the record also showed that the taxpayer would have eventually been willing to pay that net amount if the government had not mistakenly assessed taxes totaling approximately $10,000,000.00, excluding interest, without mailing the taxpayer the mandatory pre-assessment notice of deficiency. See 26 U.S.C.A. § 6213(a) (West Supp. 1991). The amount assessed represented the sum of the amounts the record shows the taxpayer was prepared to concede was due for years in which it had underpaid its taxes, but did not include any credit for taxes paid in years for which the government was prepared to concede over-payments totaling about $6,000,000.00. When the illegal assessments were made, formal recognition of the credit had been forestalled by ongoing proceedings for approval of the overpayments before Congress’s Joint Committee on Taxation in accord with 26 U.S.C.A. § 6405(a) (West 1989). The taxpayer had, at that time, agreed to extend the statute of limitations on assessment but, as the record also shows, was unwilling to waive unconditionally the required notice of deficiency and the restrictions on assessment and collection. See id. § 6213(a). The restrictions include a stay of collection for ninety days and give a taxpayer unable or unwilling to pay the Internal Revenue Service’s (IRS’s) claims at once a chance to seek relief in the United States Tax Court. Though Congress’s approval of the credits taxpayer wanted was obtained shortly before the agreed extension of the statute of limitations on assessment expired, the IRS nevertheless attempted to collect the full amount of the illegal assessments with- • out credit for the overpayments in other years that the parties recognized the taxpayer had made. Had assessments been properly made for the years in which deficiencies existed and credits been properly allowed for years in which there were overpayments, IRS would have been entitled to about $4,000,000.00 from the taxpayer. The IRS’s attempt to collect the full amount failed because the taxpayer obtained judicial relief that precluded the IRS from collecting more than the net taxes due after allowance of the agreed credits for the taxpayer’s over-payments. Thus, the IRS succeeded in forcing payment of the net due, about $4,000,000.00. The IRS is now threatened with the loss of that amount and the additional $6,000,000.00 or so that the taxpayer had overpaid in other years but would have let the government keep as a credit against the $10,000,000.00 or so the taxpayer was willing to concede it owed for the years in which it had underpaid. For the reasons set forth below, we hold that the district court erred in entering summary judgment in favor of the government and in denying the taxpayer’s cross-motion for summary judgment. As we shall explain, the applicable statutory and case law does not permit us to rely upon the sort of equitable considerations that were essential to the government’s victory in the district court. Thus, we are left with the fact that the taxpayer paid over $10,-000,000.00 as the result of illegal assessments. We will therefore reverse the entry of summary judgment in favor of the government and remand this matter to the district court with directions to grant the taxpayer’s cross-motion and enter summary judgment in the taxpayer’s favor. I. In the years 1970-72, the Internal Revenue Service audited the taxpayer’s returns for the years 1964 through 1967 and for the first four and one-half months of 1968. For the calendar year 1964, the IRS calculated that the taxpayer had overpaid its taxes in the amount of $231,991.00. For • the calendar year 1965, the IRS calculated that the taxpayer had underpaid its taxes in the amount of $19,485.00. For the calendar year 1966, the IRS calculated that the taxpayer had underpaid its taxes in the amount of $9,336,231.00. For the calendar year 1967, the IRS calculated that the taxpayer had overpaid its taxes in the amount of $6,237,660.00. Finally, for the first four and one-half months of 1968, the IRS calculated that the taxpayer had underpaid its taxes in the amount of $1,174,119.00. Thus, the taxpayer owed the government $10,529,835.00 as the result of underpayments, and the government owed the taxpayer $6,469,651.00 as the result of over-payments. The taxpayer’s net deficiency over these years was $4,060,184.00. Under the relevant tax laws, however, the IRS is not empowered to arrive at a net deficiency or overpayment and send the taxpayer a bill or refund for the net amount. Instead, the IRS must separately assess each year’s deficiency and separately refund each year’s overpayment. However, there is an exception to this rule: the taxpayer and the IRS can reach an agreement that permits the IRS to pay out or recover only the net overpayment or deficiency. In the absence of such an agreement, federal law requires the IRS to mail the taxpayer a notice of deficiency for each year’s underpayment. See 26 U.S.C.A. § 6213(a). Section 6213(a) also provides the taxpayer with a ninety-day period following mailing of the notice within which to seek a redetermination of the deficiency in Tax Court. Until expiration of the ninety-day period or the conclusion of any judicial proceedings, whichever is later, § 6213(a) prevents the IRS from assessing or collecting any tax due. See Holof v. Commissioner, 872 F.2d 50, 53 (3d Cir.1989); Flynn v. United States ex rel. Eggers, 786 F.2d 586, 589 (3d Cir. 1986). Furthermore, in the absence of such an agreement, the taxpayer would be entitled to full refunds with respect to the amounts it overpaid in 1964 and 1967. At the time relevant to this suit, however, the statute required IRS to submit for approval to Congress’s Joint Committee on Taxation, see 26 U.S.C.A. §§ 8001-8005 (West 1989), any proposed refunds in excess of $100,-000.00. See id. § 6405(a) note (West 1989). If the Committee takes no timely action to bar the refund, the IRS can schedule the overpayments as overassessments and then pay or credit the taxpayer with a refund. See id. §§ 6405, 6407 (West 1989). The taxpayer in the appeal now before us sought to enter into an agreement with the IRS that would permit the taxpayer’s over-payments in 1964 and 1967 to be applied against the amount it still owed to the government for the years 1965 and 1966 and for the first part of 1968. On December 13, 1972, the taxpayer executed a modified version of IRS Form 870. Form 870, in its usual printed form, is entitled “Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment.” See Appendix (App.) at 881. At the top of the Form 870 that the taxpayer executed, the following standard pre-printed message was prominently displayed: Pursuant to section 6213(a) of the Internal Revenue Code of 1954 or corresponding provisions of prior internal revenue laws, the restrictions provided in section 6213(a) or corresponding provisions of prior internal revenue laws are hereby waived and consent is given to the assessments and collection of the following deficiencies, together with interest on the tax as provided by law; and the following overassessments are accepted as correct:.... Id. The standard printed text merely explains that execution of Form 870 waives the taxpayer’s right to receive the statutorily required notice of deficiency for each underpayment and the taxpayer’s right to seek redetermination of the amount of the deficiencies asserted in the Tax Court. Instead, a properly executed Form 870 permits the IRS to assess and collect tax due without sending the taxpayer a notice of deficiency. See 26 U.S.C.A. § 6213(d) (West Supp.1991). Thus, a taxpayer who signs the standard Form 870 must be prepared to pay the balance due the IRS on demand or suffer the exigencies of the collection process. Upon the Form 870 that this taxpayer signed, it added a condition to its waiver of the ninety-day notice that section 6213(a) requires before the IRS may assess or collect any deficiency. The condition stated: This document shall be effective as a waiver of restrictions on assessment and collection with respect to taxable years ending December 31, 1965 and December 31, 1966 and the taxable period ending April 18, 1968, on the date the schedule of overassessments with respect to the taxable years ending December 31, 1964 and December 31, 1967 is signed by an authorized representative of the Internal Revenue Service. App. at 881. The parties agree that the IRS assessed the taxes at issue in this refund action against the taxpayer before fulfilling the express condition that the Form 870 qualified waiver contained and without giving the statutorily required notice. In its brief, the government explains that IRS Form 870 confers a benefit upon a taxpayer that does not wish to petition the Tax Court for redetermination of any deficiencies owed. A taxpayer that seeks review in the Tax Court faces the possibility of owing interest on the full amount of any deficiency the Tax Court finds due; however, a taxpayer that forgoes review in Tax Court can, by executing a binding Form 870, suspend interest on tax due from the thirtieth day following the filing of the waiver through the time that the IRS issues a notice and demand for payment. See 26 U.S.C.A. § 6601(a), (c) (West Supp. 1991). As noted, execution of a binding Form 870 can have negative consequences as well, since the waiver permits the IRS to demand that the taxpayer immediately pay the deficiencies listed upon the form. The government and the taxpayer agree, however, that execution of Form 870 does not waive the taxpayer’s right to seek a refund in district court or in the United States Claims Court following payment of the amount listed on Form 870. The form itself says as much. While execution of a non-conditional Form 870 would permit the IRS to require immediate payment of deficiencies, the timetable upon which the taxpayer could expect to receive refunds for the years 1964 and 1967 was uncertain. Before a refund request could come before Congress’s Joint Committee on Taxation, IRS field personnel were required to draft a report. Then, the IRS’s national office would review the report before sending it to the Joint Committee. Thereafter, the Joint Committee, under section 6405(a), has thirty days to review the proposed refund. If the Joint Committee does not reject the refund within the thirty-day period, the IRS must then process the refund. The condition that the taxpayer included in its Form 870 waiver was meant to require the IRS to wait until the over-payments were available before assessing the deficiencies. The taxpayer did not wish to pay “out of pocket” anything more than the net deficiency it owed to the IRS. In exchange for that offer, the taxpayer offered to waive its right to litigate the amounts of the deficiencies in Tax Court. In January of 1973, the IRS sent information relevant to the taxpayer’s over-payments to the Joint Committee. At the same time, other wheels within the IRS began to churn. The IRS’s Chicago District Office, which had conducted the audit of the taxpayer’s accounts that resulted in the deficiencies and overpayments contained on the modified Form 870, forwarded information concerning the tax deficiencies it asserted to the IRS’s Kansas City Service Center, which processes returns. An IRS employee by the name of Ida Ballard (Ballard) was assigned to the taxpayer’s particular file at the Kansas City Service Center. Operating under IRS internal procedures that require the immediate assessment of deficiencies in excess of $50,000.00, Ballard initiated assessment procedures in February of 1973. Gerald Nordstrom (Nordstrom), the taxpayer’s tax attorney, contacted Ballard following the taxpayer’s receipt of the assessments that, with interest, totaled more than $13,000,-000.00. Nordstrom informed Ballard that he had signed a qualified Form 870 waiver but that the form’s condition had yet to be met. Upon learning that the taxpayer anticipated refunds and wished to apply those refunds against its deficiencies, Ballard abated the assessments. Ballard was aware following her first conversation with Nordstrom that the extended statute of limitations applicable to the assessments against the taxpayer would not expire until June 30, 1973. By early June of 1973, the Joint Committee had yet to complete its review of the taxpayer’s refund. As a result, the IRS asked for a further extension of the statute of limitations until September 30, 1973. The taxpayer agreed. The IRS never informed Ballard of the extension. On June 19, 1973, the Joint Committee indicated that it had no objection to the taxpayer’s refund. Ballard was not informed of the Committee’s approval. Still, three days later, on June 22, 1973, Ballard once again made the entry that constituted assessments against the taxpayer and mailed tax bills demanding payment of the full deficiencies plus interest, totalling over $13,-000,000.00, without accompanying credit for the overpayments relating to other taxable years. The tax bills arrived at the taxpayer’s offices on June 25, 1973. Nord-strom was then on vacation, but when he returned on June 28 he called Ballard and informed her that the conditions contained on the Form 870 had not yet been satisfied and thus the assessments were premature. He also informed her that the statute of limitations had been extended until the end of September, 1973. Also on June 28, Nordstrom received a letter that the Joint Committee allowed the taxpayer’s refunds. This time, Ballard failed to abate the assessments she made on June 22, 1973. Neither party disputes that when Ballard made these assessments the condition contained on the qualified Form 870 had yet to be met: the taxpayer’s overassessments had yet to be scheduled. In fact, schedules of the taxpayer’s 1967 overassessments were not signed until August of 1973, while schedules of the taxpayer’s 1964 overas-sessments were not signed until October of 1973. On September 30, 1973, the extended statute of limitations for assessments related to the taxpayer’s 1965, 1966 and 1968 taxable periods expired. Neither party disputes that the assessments Ballard made on June 22, 1973 were not preceded by the notices of deficiency that are required under federal law unless the taxpayer has waived the notice. Because the express condition contained on the taxpayer’s Form 870 had not occurred, the taxpayer had not waived the notices of deficiency it was entitled to under federal law when Ballard assessed these deficiencies against it. Based upon the June 22, 1973 assessments, the IRS initiated collection proceedings against the taxpayer in late November of 1973. An IRS agent visited the taxpayer in December of 1973 and demanded immediate payment on the tax bills that he presented. Instead of paying the bills, the taxpayer filed suit in the United States District Court for the Northern District of Illinois seeking to enjoin the IRS from collecting or otherwise recovering the $10,-529,835.00 in deficiencies that had been illegally assessed against the taxpayer. Both the taxpayer and the IRS moved for summary judgment. The Illinois district court issued a split decision; it seemed to agree with the taxpayer that the June 22, 1973 assessments were illegal; however, it held that the IRS could collect the amount of the net deficiency, $4,060,184.00, because the taxpayer had failed to demonstrate irreparable harm and so did not meet the requirements for injunctive relief. The IRS and the taxpayer took separate appeals to the United States Court of Appeals for the Seventh Circuit. It affirmed in a published opinion. See Philadelphia & Reading Corp. v. Beck, 676 F.2d 1159 (7th Cir.1982). The court of appeals ruled that the June 22, 1973 assessments were illegal. Id. at 1164. However, the court agreed with the district court that in order to qualify for injunctive relief the taxpayer had to show not only a likelihood of success on the merits but also irreparable harm. See id. at 1163-64. The court wrote: The taxpayer here has shown that equity supports an injunction with respect to the illegal $14,000,000 June 22nd deficiency. However, it has made no such showing with respect to the $4,060,184 net deficiency which resulted from the 1972 audit and which the taxpayer had agreed to pay. Id. Following the Seventh Circuit’s decision, the IRS exercised its collection powers and levied upon taxpayer’s property in early 1983 in order to collect the net deficiency. On April 6, 1983, the taxpayer filed an administrative claim with the IRS seeking a refund of the full $10,510,350.00 that had been illegally assessed. This claim was the sum of the net deficiency of $4,060,184.00 and the overpayments that reduced the total deficiency to the net amount. The IRS disallowed the claim on November 8, 1983. On November 22, 1983, the taxpayer filed this suit in the United States District Court for the District of Delaware. In its original complaint, the taxpayer sought a refund of only the $4,060,184.00 plus interest and penalties that the IRS collected from it. In early July of 1985, the district court granted the parties’ joint motion to dismiss with leave to reinstate the action to permit the parties to resolve issues related to interest and penalty. On March 28, 1989, the taxpayer filed an amended complaint seeking a refund of the entire $10,529,835.00 that was illegally assessed on June 22, 1973, the amount of interest collected on that sum and interest on all of those sums owed. At the time of the Delaware district court’s opinion, this sum exceeded $30,000,-000.00. After the taxpayer filed its amended complaint, both parties moved for summary judgment. In a published opinion and order entered May 31, 1990, the district court granted the government’s motion for summary judgment and denied the taxpayer’s cross-motion. See Philadelphia & Reading Corp. v. United States, 738 F.Supp. 143 (D.Del.1990). The district court recognized that the June 22, 1973 assessments against the taxpayer were illegal. Nevertheless, the district court held that the taxpayer was not entitled to a refund. The district court wrote: P & R has reaped the benefits of the qualified Form 870 by having the over-payments credited against the deficiencies; its expectations were fulfilled. The record shows that P & R had no intention of challenging the IRS’s position in the Tax Court_ Consequently, it is ap- propriate to consider the contentions that P & R experienced no material prejudice from the IRS’ action and P & R obtained the substantive results from the qualified Form 870 that it had expected. Because it enjoyed the benefit of its bargain, P & R is not entitled to a refund of any amount of the tax deficiencies. Id. at 149. The taxpayer filed this timely appeal. In it, the taxpayer contends that the district court should have ended judicial inquiry when it recognized that the assessments were illegal because the IRS failed to give the statutorily required notices of deficiencies. The taxpayer maintains that the district court erred in even examining whether equitable considerations favored the taxpayer or the IRS. Alternately, the taxpayer argues that if the district court properly considered equitable factors, it erred in deciding for IRS since the equities on balance favored the taxpayer, not the IRS. II. The district court exercised subject matter jurisdiction over this case pursuant to 28 U.S.C.A. § 1346(a)(1) (West Supp.1991). Section 1346(a)(1) grants jurisdiction to district courts over “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected.” We have appellate jurisdiction over the district court’s final order granting summary judgment in favor of the government and denying taxpayer’s cross-motion for summary judgment pursuant to 28 U.S.C.A. § 1291 (West Supp.1991). Since this appeal is taken from a final order granting summary judgment, our scope of review is plenary. See International Union, UMWA v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990). Thus, “[w]e apply the test provided in Federal Rule of Civil Procedure 56(c): (1) is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?” Id. The parties correctly agree that no genuine issue of material fact remains to be resolved. Thus, the sole issue presented on appeal is which party is entitled to judgment as a matter of law. III. The taxpayer’s argument on appeal is not complicated. It contends that its submission to the IRS of the qualified Form 870 presented the IRS with two options. Under the first option, the IRS could have satisfied the condition contained in the form and not assessed the deficiencies until an authorized representative of the IRS signed the schedule of overassessments that the Joint Committee had approved. Under the second option, the IRS could have chosen not to accept the condition contained in the form and instead sent the taxpayer the notices of deficiency that the law required in the absence of an effective waiver as a condition precedent to assessment. The taxpayer maintains that the IRS instead violated the law when it assessed the taxes that are the subject of this appeal without first sending the taxpayer the required statutory notices of deficiency. The taxpayer reminds us that it did not effectively waive its right to receive these notices because the IRS failed to satisfy the express condition contained in taxpayer's qualified Form 870. Thus, according to the taxpayer, the IRS failed to make a legal assessment before the statute of limitations applicable to these deficiencies expired. As a result, the taxpayer contends that it is entitled to a refund of the entire amount of the illegal assessments. The taxpayer’s position is not without support. In Robinson v. United States, 920 F.2d 1157, 1161-62 (3d Cir.1990), we wrote: Congress has created an elaborate system for the collection and dispute of tax matters. Adherence to these procedures is required by both citizens and the IRS alike. As one commentator remarked, “The procedural provisions of the Code appear to be the creation of a scholastic, but whimsical, mind. In general, however, the courts take them literally: the game must be played according to the rules.” Johnson, An Inquiry into the Assessment Process, 35 Tax L.Rev. 285, 286 (1980). Years earlier, this Court wrote in Richardson v. Smith, 301 F.2d 305, 306 (3d Cir.) (per curiam), cert. denied, 371 U.S. 820, 83 S.Ct. 36, 9 L.Ed.2d 60 (1962): “[W]e and other courts have pointed out in many instances that taxation is a game which must be played strictly in accordance with the rules.” Reported decisions from the United States Courts of Appeals for the Fifth, Seventh and Ninth Circuits provide specific persuasive support for the arguments the taxpayer raises on appeal. In Steiner v. Nelson, 259 F.2d 853 (7th Cir.1958), taxpayer Steiner executed Form 870 with the express condition that “This waiver of restrictions is subject to acceptance by the Commissioner on the basis of the settlement hereinbefore proposed and if not accepted, it will be of no force or effect.” Id. at 856. Similar to the case now before us, in Steiner the IRS did not satisfy the condition set forth on the Form 870; instead, the IRS assessed taxes and sought to collect them without first providing Steiner with the notice of deficiency that is a statutory condition precedent to assessment in the absence of a valid waiver. Id. at 854-55. Steiner sought an injunction in district court to prevent the IRS from collecting the taxes, and the district court granted his motion for summary judgment. On appeal, the court of appeals affirmed the district court’s injunction in Steiner’s favor. Id.; see also United States v. Yellow Cab Co., 90 F.2d 699 (7th Cir.1937) (holding illegal IRS’s assessment and collection of taxes while taxpayer was seeking review of deficiencies in Tax Court). In Maxwell v. Campbell, 205 F.2d 461 (5th Cir.1953), taxpayer Maxwell sought an injunction that would bar the IRS from collecting assessments that were made without the required notice of deficiency. Id. at 462. The district court denied Maxwell’s request for an injunction. The court of appeals reversed, writing that “[t]he commissioner is as bound as the taxpayer by [the] terms [of the Internal Revenue Code.]” Id. at 463. Finally, in Ventura Consol. Oil Fields v. Rogan, 86 F.2d 149 (9th Cir.1936), cert. denied, 300 U.S. 672, 57 S.Ct. 610, 81 L.Ed. 878 (1937), taxpayer Ventura Consolidated Oil Fields (Ventura) brought an action to enjoin the IRS from collecting deficiencies that the IRS assessed during a period in which assessment was prohibited. In Ven-tura, the IRS sent the taxpayer a letter expressing the substance of a tentative settlement that the company and the IRS had reached concerning Ventura’s tax liability. See id. at 152. Ventura signed a form that the IRS had enclosed with the letter and returned it to the IRS. However, the IRS did not sign the form or execute it as was required under the relevant federal statute. See id. The IRS then proceeded to assess the deficiencies stated in the letter against Ventura. In its suit to enjoin collection of the assessments, Ventura advanced a number of arguments, three of which are relevant here. First, it contended that the letter the IRS sent did not constitute the required notice of deficiency. See id. at 151. Second, Ventura contended that even if the letter did constitute the required notice of deficiency, the IRS assessed the tax in the period following the letter during which assessment is suspended so that the taxpayer may decide whether to litigate the deficiency in Tax Court. See id. Last, Ventura contended that the form it signed and mailed to the IRS did not serve to waive Ventura’s right to receive a notice of deficiency because the IRS never properly accepted the form. See id. at 152. The district court refused to issue the injunction and ruled in favor of the IRS. See id. at 153. On appeal, the court of appeals reversed. The court of appeals held that the letter did not constitute the required notice of deficiency. See id. at 154. The court also held that the form Ventura signed did not waive its right to receive a notice of deficiency, before the IRS could assess the taxes at issue. See id. The court wrote: “The Commissioner may not take that portion of the proposed compromise which suits him and reject the rest. If a taxpayer’s waiver of restrictions [upon assessment] is given upon a condition, the Commissioner may not take advantage of the waiver without complying with the condition.” Id. (citation omitted). While the IRS argued that equitable principles, in light of the large sums at stake, required that the district court’s order be affirmed, the court wrote: “We are unable to discover any differences in the applications of the rules of law or equity in tax cases, whether the government’s claim be for $100 or $10,000,000.” Id. at 156. The taxpayer’s position is also supported by statutory authority. The statutory provision that requires the IRS to send a taxpayer a notice of deficiency before assessing taxes, except when a taxpayer validly waives its right to such notice, contains four express exceptions. See 26 U.S.C.A. § 6213(a), (b), (d) (West Supp.1991). Those four exceptions are: (1) Assessments arising out of mathematical or clerical errors.... (2) Abatement of assessment of mathematical or clerical errors.... (3) Assessments arising out of tentative carryback or refund adjustments.... (4) Assessment of amount paid.... Id. § 6213(b). None of these four exceptions applies here. The IRS does not contend that it was entitled to keep the more than $6,000,000.00 in refunds due the taxpayer for tax years 1964 and 1967 because those taxes were “already paid” under § 6213(b)(4). Instead, the IRS apparently recognized that § 6213(b)(4) applies to taxes already paid for the same year as the assessments that follow. See 1 G. Dono-ghue, Jr. & J. Doheny, Casey Federal Tax Practice § 6.11 (1982). An assessment of taxes that is not preceded by the statutorily required notice of deficiency or a validly executed and accepted waiver of notice of deficiency is illegal, and we so hold. In doing so, we are in accord with the Illinois district court that decided the taxpayer’s earlier injunction action, see Philadelphia & Reading Corp. v. Beck, No. 73-03134 1980 WL 1734 (N.D.Ill. Aug. 29, 1980), the Seventh Circuit, which heard the injunction action on appeal, see Beck, 676 F.2d at 1163, and the Delaware district court, which ruled on the refund case now on appeal to us, see Philadelphia & Reading Corp. v. United States, 738 F.Supp. at 149 n. 22. We also agree with those courts that the qualified Form 870 that the taxpayer executed did not serve to waive its right to receive notices of deficiency. The waiver contained the express condition that before the IRS could assess any deficiencies the Joint Committee had to approve and the IRS had to sign the taxpayer’s schedule of overassessments. Instead, the IRS assessed the taxes before signing the schedule. This was improper. As the Ninth Circuit noted in Ventura, “[t]he Commissioner may not take that portion of the proposed compromise which suits him and reject the rest. If a taxpayer's waiver of restrictions [upon assessment] is given upon a condition, the Commissioner may not take advantage of the waiver without complying with the condition.” 86 F.2d at 154. The dissent’s conclusion that IRS’s failure to abide by the condition on waiver is unimportant because “once the overas-sessments were scheduled [there is] nothing in [the condition’s] language that attaches any import to when the assessment was made, or, more particularly, whether the assessment preceded the scheduling of the overassessments” ignores the nature of a condition. Dissent, at 1078 (emphasis omitted). The IRS’s failure to meet a condition precedent to a taxpayer’s agreement to waive the statutory procedures limiting the right to assess prevent an agreement to waive from ever becoming effective. Accordingly, in this case, there was never any agreement on whose substantial performance could save the IRS from the effect of failure to perform the statutory preliminaries to assessment. Substantial performance or the absence of identifiable prejudice from non-performance does not retroactively cure the illegality of these assessments. As the dissent recognizes, an assessment that precedes a notice of deficiency is “forever void and illegal.” Id. Whether a later assessment after the condition on a taxpayer’s waiver of the statutory collection process was substantially met is not before us. Here, no assessments were ever made after the overassessments were scheduled; and, if any had been made, they would have been barred by the statute of limitations. Since the applicable statute of limitations on assessment has long since expired, it is also apparent that it is now too late to make valid assessments. As a result, the IRS cannot reassess these taxes even though the record shows the taxpayer was willing to concede they were due. Thus, the Illinois district court, the Seventh Circuit and the Delaware district court, while also concluding the assessments were illegal, refused to enjoin collection of the net amount due or order refunds of the taxes illegally paid and assessed. Instead, all three courts examined the equities and ruled in favor of the IRS. As we have already noted, examination of the equities is necessary and appropriate in a taxpayer’s action to enjoin illegally assessed taxes. See Flynn, 786 F.2d at 590. The Illinois district court and the Seventh Circuit were correct in examining the equities when deciding whether to grant the injunction the taxpayer requested. We hold, however, that the Delaware district court erred in entering summary judgment in favor of the government based upon equitable considerations. In a tax refund action based upon an admittedly illegal assessment, the Internal Revenue Code does not permit a court to balance the equities and determine the amount fairly due from a taxpayer by netting out his liabilities and payments over different taxable years. We have set forth above the four specific exceptions to the requirement that a taxpayer receive a notice of deficiency before the IRS can assess or collect taxes that Congress has enacted. See 26 U.S.C.A. § 6213(b). None of the four exceptions permits consideration of the equities. In cases involving statutory construction of enumerated exceptions by Congress to a statutory scheme, the Supreme Court often applies the Latin maxim expressio unius est exclusio alterius. It has explained that “[wjhere Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent.” United States v. Smith, — U.S. -, 111 S.Ct. 1180, 1185, 113 L.Ed.2d 134 (1991) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910-11, 64 L.Ed.2d 548 (1980)); see Continental Cas. Co. v. United States, 314 U.S. 527, 533, 62 S.Ct. 393, 86 L.Ed. 426 (1942). The IRS has failed to suggest any contrary legislative intent here. Indeed, we think the maxim has special force when the statutory scheme is complex, its parts are closely related and, in making important decisions, the persons affected by it depend heavily on the evenhanded application of the statute’s plain terms Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_appel1_1_3	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. GARDEN CITY CO. et al. v. BURDEN. No. 4106. United States Court of Appeals Tenth Circuit. Jan. 2, 1951. J. E. DuMars, Topeka, Kan. (Clayton M. Davis and Mark L. Bennet, Topeka, Kan., on the brief), for appellants. Paul R. Kitch, Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Dale M. Stuckey and Donald R. Newkirk, all of Wichita, Kan., on the brief), for appellee. Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge. This action was filed in the United States District Court for the District of Kansas, against the Garden City Company, herein referred to as Garden City, and United ■ States Irrigating Company, herein called the Irrigation Company, for damages to plaintiff’s alfalfa land caused by the negligence of the defendants in the operation of the Great Eastern Canal an irrigation canal crossing plaintiff’s land. The Irrigation Company is the owner of the irrigation ditch in question. Garden City is a Colorado corporation and the Irrigation Company is a Wyoming corporation. In brief, the complaint as finally constituted, alleged that the Irrigation Company is a wholly owned subsidiary of Garden City; that Garden City owns all the shares of stock in the Irrigation Company; that the two companies have common management and interlocking directorates and offices; that the Irrigation Company was organized and is maintained and operated for the sole purpose of carrying out the aims and purposes and promoting the affairs of the parent, Garden City, and is' a mere instrumentality and adjunct thereof, being completely dominated and controlled by it, and that by reason thereof, the acts of the Irrigation Company in the operation and maintenance of the Great Eastern Canal were in truth and fact the acts of Garden City and that it was liable for the wrongs complained of. For cause of action, plaintiff alleged his ownership of some 280 acres of agricultural land being farmed under irrigation with water from an irrigation ditch known as the Amazon. The complaint alleged that defendants owned and operated an irrigation ditch known as the Great Eastern Canal; that said canal passed across plaintiff’s farm and extended for approximately half a mile across the westerly and northerly sides thereof. The following acts of negligence were alleged: The defendants had failed to maintain the ditch in proper repair, had failed to repair various spillways, had failed to keep the bottom of the ditch free from sand, and had failed to replace worn out wooden openings in the ditch and had permitted the banks, particularly at plaintiff’s farm, to be in an unsafe condition. The complaint further alleged that beginning with 1947, defendants had caused a large quantity of water to be transported through the defective canal and that by reason thereof 30 acres of his alfalfa land was inundated through seepage of water to his damage in the sum of $6,000.00. That on June 4, 1949, a flood occurred, caused by heavy rains; that by reason of the defective condition of the canal it was unable to safely carry the great volume of water injected into it; That as a result the banks gave way, flooding and ruining about 100 acres of plaintiff’s land, causing a total loss of crops valued at $4,000.00, and permanently injuring the land to the extent of $21,000.00. The Garden City Company denied that it was the owner of the ditch or that it had any part in its operation, control, or maintenance. The Irrigation Company denied any negligence on its part in the operation of the ditch and alleged that any loss suffered by plaintiff was the result of rains of such unprecedented proportions as to amount to an act of God. Trial was had to a jury resulting in a verdict against defendants for $8,500.00, on which judgment was entered and this appeal followed. The first assignment of error is that there was a misjoinder of parties defendant. This is predicated on the contention that the record clearly establishes that the two corporations are separate entities and that Garden City had no part in the management, control or operation of the irrigation ditch. The court, under appropriate instruction, submitted this question to the jury and instructed it that in the event it found that Garden City in fact operated and controlled the Irrigation Company for its own purposes, then Garden City would be liable for any acts of negligence on the part of the Irrigation Company. The jury evidently concluded that the Irrigation Company was the alter ego of Garden City, because it returned a verdict against it. We agree with the jury’s findings in this respect. There is no conflict in the authorities as to the legal principles controlling a determination whether the separate legal entity of two corporations must be disregarded and they be treated as one. As stated by Judge Phillips in Taylor v. Standard Gas & Electric Co., 10 Cir., 96 F.2d 693, the fact that one •corporation owns all of the stock of another and thereby selects from its own directors and officers a majority or all of the directors of the other, or that a parent finances a subsidiary is, without more, not sufficient to warrant disregarding the separate legal entity and treating them as one. But it is also stated in the same opinion that where the relationship between the parent and its subsidiary is so intimate, the parent’s control over the subsidiary is so dominating and the business and assets of the two so commingled, that recognition of distinct, entity would result in injustice to third persons, courts should look through the legal fiction of separate entity and treat them as justice requires. While this was held in a bankruptcy proceeding involving the parent and its subsidiary, the legal principles apply generally in all cases. The Irrigation Company was a non profit corporation and as such had no capital. All of its stock was owned by the Garden City Company. Eighty-six per cent of all of its water rights was owned by Garden 'City. It depended upon Garden City for its financing. No interest was charged by Garden City for money advanced to the Irrigation Company. Two regular employees of the Irrigation Company were paid by Garden City and at the end of the year their salary was charged against the account of the Irrigation Company with Garden City. All of the directors, and officers of the Irrigation Company were directors, officers or employees of Garden City. They received all their pay from Garden City and none from the Irrigation Company. W. E. Leavitt was the Treasurer and General Manager of Garden City, and was President and General Manager of the Irrigation Company. He testified that while there were no contractual relations between the two companies, yet, if the Board of Directors of Garden City should give him instructions as to what to do relative to the Irrigation Company’s ditch, he would follow such instructions. Garden City has paid the Irrigation Company’s current water right assessments but has not paid back assessments in the sum of $91,000.00, less the current assessments. The testimony was that these back assessments constituted a bookkeeping transaction between the two companies. Charles F. Edwards, the Secretary-Treasurer of the Irrigation 'Company is paid by Garden City and receives no pay from the Irrigation Company. He testified that the $91,000.00 indebtedness of Irrigation Company was incurred in rebuilding the Hartland dam. The Irrigation Company maintains no offices other than those incident to the offices occupied by. employees or officers in their position with Garden City. The name Irrigation Company appears nowhere on any of the offices occupied by its officers and it has no telephone listing. Garden City as the owner of all the stock of the Irrigation Company is the only voter at Irrigation Company’s elections. It is difficult to envision a mor-; complete oneness than exists between these two companies. Garden City Company owns, controls and directs all operations of the Irrigation Company. There is also evidence that when the ditch was repaired and cleaned out it was done with equipment belonging to Garden City and bearing its name on the equipment. Irrigation Company had no assets, it owns no property other than the easement in the ditch. Under these circumstances, it would be inequitable to permit Garden City to escape liability, if such there is, because of negligent operation of the ditch under the pretext of the separate identity of the two corporations. It is further contended that there is no evidence of negligence supporting the verdict and judgment and that any damage suffered 'by Burden was the result of an act of God. On June 3, 4, and 5, 1949, 7.58 inches of rain fell in the Lakin area where this ditch is located. The fall on June 3 was .93 inches, on June 4, 1.35 inches, and on June 5, 5.30 inches. The heaviest rainfall recorded in a twenty-four hour period prior thereto was 4.55 inches in August, 1926. The record does not reveal whether rain fell on that occasion on other days close to the day on which 4.55 inches fell, but even if we consider the fall of 4.55 inches as against the total three days’ fall of 1949 of 7.58 inches, we do not think the disparity is so great as to require a finding, as a matter of law, that such a rain was an act of God. But even if we assume that this rainfall constituted an act of God, it does not require a reversal of the judgment. The court, in effect, instructed the jury that if the rainfall constituted an act of God, and was the sole cause of the damage, Burden could not recover. The jury’s verdict means that either it did not consider that this rainfall amounted to an act of God or that if it did, it was not the proximate or sole cause of the injury. The court properly instructed the jury that defendant would not be relieved from liability even though the rainfall was beyond that which could have been anticipated if negligent acts on their part concurred therewith to produce plaintiff’s injury. This brings us to the main contention that there is no evidence of negligence on defendants’ part in the maintenance and operation of the ditch to support the verdict and judgment entered thereon. At the outset, we may say that there is evidence, which, taken alone, makes a case of non negligence on appellants’ part. But since our scope of review is limited to an inquiry whether there is other evidence of probative value which would support a contrary conclusion, we limit our discussion thereto. In 1925, a wooden irrigation box used to release water from the ditch for irrigation had been placed in the bottom of the ditch adjoining Burden’s farm. In 1927, the ditch broke at two places, one being at the place where this box was and a larger box was installed. The box filled up with dirt but the man then farming the place dug it out in 1930. That was the last year it was used for irrigation. The box remained in the dam and washed out in the 1949 flood. In 1947, Burden noticed water in his alfalfa field. The water seemed to come from the base of the ditch at a point where the irrigation box was. He notified Leavitt who came out at a time when no water was running in the ditch. Some damage occurred to the alfalfa in 1947. By the fall of 1948, there was additional damage to the alfalfa. In the summer of 1948, Burden observed that the ditch was leaking at this point. After additional complaints, someone came to the ditch with equipment bearing the name Garden City Company and effected some repairs. In May, 1949, Burden inspected the ditch at this point and saw that it was again leaking. As stated, shortly thereafter this box washed out. There is also evidence that the flood water did not go over the top of the dam, at least not at Burden’s farm. If this is so, the break must have first occurred around the irrigation box. The manner in which the irrigation box was sealed off when it was discontinued is in dispute. Appellants produced evidence showing that it was sealed off on the inside by placing 8 feet of dirt against the bank. There was, however, other evidence showing that the wooden box was flush with the inside of the bank of the irrigation ditch. Leavitt, President of the Irrigation Company, admitted that it was not good practice to leave an old wooden box in the bank of an irrigation ditch. R. J. Tipton, an engineer produced by appellants, admitted that it would be poor practice to leave an old wooden 'box in the operating bank of an irrigation ditch. Dan C. Moehring, an engineer, testified for Burden that the proper method of repairing a ditch when such a box was, discontinued was to remove it and fill the aperture with dirt, first treating the banks so as to provide a good seal between the existing earth of the dyke and the material used to make the repair. In response to a hypothetical question, he testified that in his opinion the cause of the break was the weakened condition of the bank caused by the improper filling of the old wooden box. The objections lodged to the hypothetical question propounded to him are without substantial merit. There is other evidence which would support a finding of negligence in the operation and maintenance of the dam. We do not recount it because the evidence outlined above, if believed, as it no doubt was, is sufficient to support the conclusion that the 'break occurred around this old wooden box and that appellants were guilty of negligence in the manner in which they treated it after its use was discontinued and that this was the proximate cause of the injury suffered. It is urged the trial court erred in its instructions numbered 7, 8, 14, 15, 17, and 18. After the court 'had instructed the jury, the following proceedings were had before the court and out of hearing of the jury. “By the Court: Do any of you have any further objections or suggestions relative to the instructions of the Court? “Mr. Davis: I would like to enter objections to a few of them for the purpose of the record. “The Court: Very well. “Mr. Davis: Comes now the defendants and objects to the instruction of the court No. 7, 8, 14, 15, 17, 18, for the reason that such instructions incorrectly state the law applicable to the issues in the case. “The Court: Overruled.” Rule 51 of the Rules of Civil Procedure, 28 U.S.C.A., provides that: “* * * 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 objections. * * * ” It will be seen that appellants failed to comply with the rule and may therefore not predicate reversible error on the instructions as given. We have, however, examined the instructions and find no reversible error therein when considered in their entirety. Neither do we find any merit in the contention that the amount of the verdict and judgment are excessive. Affirmed. . Reversed on other grounds in 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669. . Henry v. Dolley, 10 Cir., 99 F.2d 94; Feucht v. Real Silk Hosiery Mills, 105. Ind.App. 405, 12 N.E.2d 1019; Mueller v. Seaboard Commercial Corp., 5 N.J. 28, 73 A.2d 905. . Riddle v. Chicago R. I. & P. Ry. Co., 88 Kan. 248, 128 P. 195; Law v. Gulf States Steel Co., 229 Ala. 305, 156 So. 835; Zollman v. Baltimore & O. S. W. R. Co., 70 Ind.App. 395, 121 N.E. 135. . Stillwell v. Hertz Drivurself Stations, 3 Cir., 174 F.2d 714; Hower v. Roberts, 8 Cir., 153 F.2d 726; Palmer v. Miller, 8 Cir., 145 F.2d 926. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_issue_1	14	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. HARMELIN v. MICHIGAN No. 89-7272. Argued November 5, 1990 Decided June 27, 1991 Carla J. Johnson, by appointment of the Court, 497 U. S. 1022, argued the cause and filed a brief for petitioner. Richard Thompson argued the cause for respondent. With him on the brief was Michael J. Modelski. Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Steven R. Shapiro; and for Criminal Defense Attorneys of Michigan et al. by Neil H. Fink, Elizabeth L. Jacobs, and William Swor. Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Starr, Acting Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and James A. Feldman; for the State of Arizona by Robert K. Corbin, Attorney General, Jessica Gifford Funk-houser, and Vicki Gotkin Adler, Assistant Attorney General; for the State of Michigan by Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and K. Davison Hunter and Thomas C. Nelson, Assistant Attorneys General; for the National District Attorneys Association by Richard P. Ieyoub, Jack E. Yelverton, and James P. Manak; for the Prosecuting Attorneys Association of Michigan by Robert Weiss, John D. O’Hair, and Timothy A. Baughman; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar. Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Part IV, and an opinion with respect to Parts I, II, and III, in which The Chief Justice joins. Petitioner was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. The Michigan Court of Appeals initially reversed his conviction because evidence supporting it had been obtained in violation of the Michigan Constitution. 176 Mich. App. 524, 440 N. W. 2d 75 (1989). On petition for rehearing, the Court of Appeals vacated its prior decision and affirmed petitioner’s sentence, rejecting his argument that the sentence was “cruel and unusual” within the meaning of the Eighth Amendment. Id., at 535, 440 N. W. 2d, at 80. The Michigan Supreme Court denied leave to appeal, 434 Mich. 863 (1990), and we granted certiorari. 495 U. S. 956 (1990). Petitioner claims that his sentence is unconstitutionally “cruel and unusual” for two reasons: first, because it is “significantly disproportionate” to the crime he committed; second, because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal. I A The Eighth Amendment, which applies against the States by virtue of the Fourteenth Amendment, see Robinson v. California, 370 U. S. 660 (1962), provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Rummel v. Estelle, 445 U. S. 263 (1980), we held that it did not constitute “cruel and unusual punishment” to impose a life sentence, under a recidivist statute, upon a defendant who had been convicted, successively, of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses. We said that “one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.” Id., at 274. We specifically rejected the proposition asserted by the dissent, id., at 295 (opinion of Powell, J.), that unconstitutional disproportionality could be established by weighing three factors: (1) gravity of the offense compared to severity of the penalty, (2) penalties imposed within the same jurisdiction for similar crimes, and (3) penalties imposed in other jurisdictions for the same offense. Id., at 281-282, and n. 27. A footnote in the opinion, however, said: “This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent,... if a legislature made overtime parking a felony punishable by life imprisonment.” Id., at 274, n. 11. Two years later, in Hutto v. Davis, 454 U. S. 370 (1982), we similarly rejected an Eighth Amendment challenge to a prison term of 40 years and fine of $20,000 for possession and distribution of approximately nine ounces of marijuana. We thought that result so clear in light of Rummel that our per curiam opinion said the Fourth Circuit, in sustaining the constitutional challenge, “could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system,” which could not be tolerated “unless we wish anarchy to prevail,” 454 U. S., at 374-375. And we again explicitly rejected application of the three factors discussed in the Rummel dissent. See 454 U. S., at 373-374, and n. 2. However, whereas in Rummel we had said that successful proportionality challenges outside the context of capital punishment “have been exceedingly rare,” 445 U. S., at 272 (discussing as the solitary example Weems v. United States, 217 U. S. 349 (1910), which we explained as involving punishment of a “unique nature,” 445 U. S., at 274), in Davis we misdescribed Rummel as having said that “‘successful challenges...’ should be ‘exceedingly rare,’” 454 U. S., at 374 (emphasis added), and at that point inserted a reference to, and description of, the Rummel “overtime parking” footnote, 454 U. S., at 374, n. 3. The content of that footnote was imperceptibly (but, in the event, ominously) expanded: Rummel’s “not [saying] that a proportionality principle would not come into play” in the fanciful parking example, 445 U. S., at 274, n. 11, became “not[ing]... that there could be situations in which the proportionality principle would come into play, such as” the fanciful parking example, Davis, supra, at 374, n. 3 (emphasis added). This combination of expanded text plus expanded footnote permitted the inference that gross disproportionality was an example of the “exceedingly rare” situations in which Eighth Amendment challenges “should be” successful. Indeed, one might say that it positively invited that inference, were that not incompatible with the sharp per curiam reversal of the Fourth Circuit’s finding that 40 years for possession and distribution of nine ounces of marijuana was grossly disproportionate and therefore unconstitutional. A year and a half after Davis we uttered what has been our last word on this subject to date. Solem v. Helm, 463 U. S. 277 (1983), set aside under the Eighth Amendment, because it was disproportionate, a sentence of life imprisonment without possibility of parole, imposed under a South Dakota recividist statute for successive offenses that included three convictions of third-degree burglary, one of obtaining money by false pretenses, one of grand larceny, one of third-offense driving while intoxicated, and one of writing a “no account” check with intent to defraud. In the Solem account, Weems no longer involved punishment of a “unique nature,” Rum-mel, supra, at 274, but was the “leading case,” Solem, 463 U. S., at 287, exemplifying the “general principle of proportionality,” id., at 288, which was “déeply rooted and frequently repeated in common-law jurisprudence,” id., at 284, had been embodied in the English Bill of Rights “in language that was later adopted in the Eighth Amendment,” id., at 285, and had been “recognized explicitly in this Court for almost a century,” id., at 286. The most recent of those “recognitions” were the “overtime parking” footnotes in Rummel and Davis, 463 U. S., at 288. As for the statement in Rummel that “one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies... the length of the sentence actually imposed is purely a matter of legislative prerogative,” Rummel, supra, at 274: according to Solem, the really important words in that passage were “ ‘one could argue,’” 463 U. S., at 288, n. 14 (emphasis added in Solem). “The Court [in Rummel]... merely recognized that the argument was possible. To the extent that the State... makes this argument here, we find it meritless.” Id., at 289, n. 14. (Of course Rummel had not said merely “one could argue,” but “one could argue without fear of contradiction by any decision of this Court.” (Emphasis added.)) Having decreed that a general principle of disproportionality exists, the Court used as the criterion for its application the three-factor test that had been explicitly rejected in both Rummel and Davis. 463 U. S., at 291-292. Those cases, the Court said, merely “indicated [that] no one factor will be dispositive in a given case,” id., at 291, n. 17 — though Davis had expressly, approvingly, and quite correctly described Rummel as having “disapproved each o/[the] objective factors,” 454 U. S., at 373 (emphasis added). See Rummel, 445 U. S., at 281-282, and n. 27. It should be apparent from the above discussion that our 5-to-4 decision eight years ago in Solem was scarcely the expression of clear and well accepted constitutional law. We have long recognized, of course, that the doctrine of stare decisis is less rigid in its application to constitutional precedents, see Payne v. Tennessee, ante, at 828; Smith v. Allwright, 321 U. S. 649, 665, and n. 10 (1944); Mitchell v. W. T. Grant Co., 416 U. S. 600, 627-628 (1974) (Powell, J., concurring); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-408 (1932) (Brandeis, J., dissenting), and we think that to be especially true of a constitutional precedent that is both recent and in apparent tension with other decisions. Accordingly, we have addressed anew, and in greater detail, the question whether the Eighth Amendment contains a proportionality guarantee — with particular attention to the background of the Eighth Amendment (which Solem discussed in only two pages, see 463 U. S., at 284-286) and to the understanding of the Eighth Amendment before the end of the 19th century (which Solem discussed not at all). We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee. B Solem based its conclusion principally upon the proposition that a right to be free from disproportionate punishments was embodied within the “cruell and unusuall Punishments” provision of the English Declaration of Rights of 1689, and was incorporated, with that language, in the Eighth Amendment. There is no doubt that the Declaration of Rights is the antecedent of our constitutional text. (This document was promulgated in February 1689 and was enacted into law as the Bill of Rights, 1 Wm. & Mary, Sess. 2, ch. 2, in December 1689. See Sources of Our Liberties 222-223 (R. Perry & J. Cooper eds. 1959); L. Schwoerer, Declaration of Rights, 1689, pp. 279, 295-298 (1981).) In 1791, five State Constitutions prohibited “cruel or unusual punishments,” see Del. Declaration of Rights, § 16 (1776); Md. Declaration of Rights, § XXII (1776); Mass. Declaration of Rights, Art. XXVI (1780); N. C. Declaration of Rights, § X (1776); N. H. Bill of Rights, Art. XXXIII (1784), and two prohibited “cruel” punishments, Pa. Const., Art. IX, § 13 (1790); S. C. Const., Art. IX, § 4 (1790). The new Federal Bill of Rights, however, tracked Virginia’s prohibition of “cruel and unusual punishments,” see Va. Declaration of Rights, §9 (1776), which most closely followed the English provision. In fact, the entire text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights, which provided “[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.” Perhaps the Americans of 1791 understood the Declaration’s language precisely as the Englishmen of 1689 did— though as we shall discuss later, that seems unlikely. Or perhaps the colonists meant to incorporate the content of that antecedent by reference, whatever the content might have been. Solem suggested something like this, arguing that since Americans claimed “all the rights of English subjects,” “their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection,” 463 U. S., at 286. Thus, not only is the original meaning of the 1689 Declaration of Rights relevant, but also the circumstances of its enactment, insofar as they display the particular “rights of English subjects” it was designed to vindicate. As Solem observed, 463 U. S., at 284-285, the principle of proportionality was familiar to English law at the time the Declaration of Rights was drafted. The Magna Carta provided that “[a] free man shall not be fined for a small offence, except in proportion to the measure of the offense; and for a great offence he shall be fined in proportion to the magnitude of the offence, saving his freehold....” Art. 20 (translated in Sources of Our Liberties, swpra, at 15). When imprisonment supplemented fines as a method of punishment, courts apparently applied the proportionality principle while sentencing. Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng. Rep. 1015, 1016 (K. B. 1615) (Croke, J.) (“[I]mprisonment ought always to be according to the quality of the offence”). Despite this familiarity, the drafters of the Declaration of Rights did not explicitly prohibit “disproportionate” or “excessive” punishments. Instead, they prohibited punishments that were “cruell and unusuall.” The Solem Court simply assumed, with no analysis, that the one included the other. 463 U. S., at 285. As a textual matter, of course, it does not: a disproportionate punishment can perhaps always be considered “cruel,” but it will not always be (as the text also requires) “unusual.” The error of Solem’s assumption is confirmed by the historical context and contemporaneous understanding of the English guarantee. Most historians agree that the “cruell and unusuall Punishments” provision of the English Declaration of Rights was prompted by the abuses attributed to the infamous Lord Chief Justice Jeffreys of the King’s Bench during the Stuart reign of James II. See, e. g., Schwoerer, supra, at 93; 4 W. Blackstone, Commentaries 372. They do not agree, however, on which abuses. See Ingraham v. Wright, 430 U. S. 651, 664-665 (1977); Furman v. Georgia, 408 U. S. 238, 317-319 (1972) (Marshall, J., concurring). Jeffreys is best known for presiding over the “Bloody Assizes” following the Duke of Monmouth’s abortive rebellion in 1685; a special commission led by Jeffreys tried, convicted, and executed hundreds of suspected insurgents. Some have attributed the Declaration of Rights provision to popular outrage against those proceedings. E. g., Sources of Our Liberties, supra, at 236, n. 103; Note, What Is Cruel and Unusual Punishment, 24 Harv. L. Rev. 54, 55, n. 2 (1910); see also 3 J. Story, Commentaries on the Constitution of the United States § 1896 (1833). But the vicious punishments for treason decreed in the Bloody Assizes (drawing and quartering, burning of women felons, beheading, disembowling, etc.) were common in that period — indeed, they were specifically authorized by law and remained so for many years afterwards. See Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839, 855-856 (1969); 4 Blackstone, supra, at 369-370. Thus, recently historians have argued, and the best historical evidence suggests, that it was not Jef-freys’ management of the Bloody Assizes that led to the Declaration of Rights provision, but rather the arbitrary sentencing power he had exercised in administering justice from the King’s Bench, particularly when punishing a notorious perjurer. See Granucci, supra, at 855-860; Schwoerer, supra, at 92-93. Accord, 1 J. Stephen, A History of the Criminal Law of England 490 (1883); 1 J. Chitty, Criminal Law 712 (5th Am. ed. 1847) (hereinafter Chitty). Jeffreys was widely accused of “inventing” special penalties for the King’s enemies, penalties that were not authorized by common-law precedent or statute. Letter to a Gentleman at Brussels, giving an account of the people’s revolt (Windsor, Dec. 2, 1688), cited in L. Schwoerer, The Declaration of Rights, 1689, p. 93, n. 207 (1981). The preamble to the Declaration of Rights, a sort of indictment of James II that calls to mind the preface to our own Declaration of Independence, specifically referred to illegal sentences and King’s Bench proceedings. “Whereas the late King James the Second, by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion, and the Lawes and Liberties of this Kingdome. “By Prosecutions in the Court of Kings Bench for Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses. “[Ejxcessive Baile hath beene required of Persons committed in Criminall Cases to elude the Benefit of the Lawes made for the Liberty of the Subjects. “And excessive Fines have been imposed. “And illegall and cruell Punishments inflicted. “All which are utterly and directly contrary to the knowne Lawes and Statutes and Freedome of this Realme.” 1 Wm. & Mary, Sess. 2, ch. 2 (1689). The only recorded contemporaneous interpretation of the “cruell and unusuall Punishments” clause confirms the focus upon Jeffreys’ King’s Bench activities, and upon the illegality, rather than the disproportionality, of his sentences. In 1685 Titus Oates, a Protestant cleric whose false accusations had caused the execution of 15 prominent Catholics for allegedly organizing a “Popish Plot” to overthrow King Charles II in 1679, was tried and convicted before the King’s Bench for perjury. Oates’ crime, “bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed,” had, at one time, been treated as a species of murder, and punished with death. 4 Blackstone, supra, at 196. At sentencing, Jeffreys complained that death was no longer available as a penalty and lamented that “a proportionable punishment of that crime can scarce by our law, as it now stands, be inflicted upon him.” Second Trial of Titus Oates, 10 How. St. Tr. 1227, 1314 (K. B. 1685). The law would not stand in the way, however. The judges met, and, according to Jef-freys, were in unanimous agreement that “crimes of this nature are left to be punished according to the discretion of this court, so far as that the judgment extend not to life or member.” Ibid. Another justice taunted Oates that “we have taken special care of you,” id., at 1316. The court then decreed that he should pay a fine of “1000 marks upon each Indictment,” that he should be “stript of [his] Canonical Habits,” that he should stand in the pillory annually at certain specified times and places, that on May 20 he should be whipped by “the common hangman” “from Aldgate to New-gate,” that he should be similarly whipped on May 22 “from Newgate to Tyburn,” and that he should be imprisoned for life. Ibid. “The judges, as they believed, sentenced Oates to be scourged to death.” 2 T. Macaulay, History of England 204 (1899) (hereinafter Macaulay). Accord, D. Ogg, England In The Reigns of James II and William III, pp. 154-155 (1984). Oates would not die, however. Four years later, and several months after the Declaration of Rights, he petitioned the House of Lords to set aside his sentence as illegal. 6 Macaulay 138-141. “Not a single peer ventured to affirm that the judgment was legal: but much was said about the odious character of the appellant,” and the Lords affirmed the judgment. 6 id., at 140-141. A minority of the Lords dissented, however, and their statement sheds light on the meaning of the “cruell and unusuall Punishments” clause: “1st, [T]he King’s Bench, being a Temporal Court, made it a Part of the Judgment, That Titus Oates, being a Clerk, should, for his said Perjuries, be divested of his canonical and priestly Habit... ; which is a Matter wholly out of their Power, belonging to the Ecclesiastical Courts only. “2dly, [S]aid Judgments are barbarous, inhuman, and unchristian; and there is no Precedent to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury; which yet were but Part of the Punishments inflicted upon him. “4thly, [T]his will be an Encouragement and Allowance for giving the like cruel, barbarous and illegal Judgments hereafter, unless this Judgment be reversed. “5thly,... [T]hat the said Judgments were contrary to Law and ancient Practice, and therefore erroneous, and ought to be reversed. “6thly, Because it is contrary to the Declaration, on the Twelfth of February last,... that excessive Bail ought not to be required, nor excessive Fines imposed, nor cruel nor unusual Punishments afflicted.” 1 Journals of the House of Lords 367 (May 31, 1689), quoted in Second Trial of Titus Oates, supra, at 1325. Oates’ cause then aroused support in the House of Commons, whose members proceeded to pass a bill to annul the sentence. A “free conference” was ultimately convened in which representatives of the House of Commons attempted to persuade the Lords to reverse their position. See 6 Macaulay 143-145. Though this attempt was not successful, the Commons’ report of the conference confirms that the “cruell and unusuall Punishments” clause was directed at the Oates case (among others) in particular, and at illegality, rather than disproportionality, of punishment in general. “[T]he Commons had hoped, That, after the Declaration [of Rights] presented to their Majesties upon their accepting the Crown (wherein their Lordships had joined with the Commons in complaining of the cruel and illegal Punishments of the last Reign; and in asserting it to be the ancient Right of the People of England that they should not be subjected to cruel and unusual Punishments; and that no Judgments to the Prejudice of the People in that kind ought in any wise to be drawn into Consequence, or Example); and after this Declaration had been so lately renewed in that Part of the Bill of Rights which the Lords have agreed to; they should not have seen Judgments of this Nature affirmed, and been put under a Necessity of sending up a Bill for reversing them; since those Declarations will not only be useless, but of pernicious Consequence to the People, if, so soon after, such Judgments as these stand affirmed, and be not taken to be cruel and illegal within the Meaning of those Declarations. “That the Commons had a particular Regard to these Judgments, amongst others, when that Declaration was first made; and must insist upon it, That they are erroneous, cruel, illegal, and of ill Example to future Ages.... “That it seemed no less plain, That the Judgments were cruel, and of ill Example to future Ages. “That it was surely of ill Example for a Temporal Court to give Judgment, ‘That a Clerk be divested of his Canonical Habits; and continue so divested during his Life.’ “That it was of ill Example, and illegal, That a Judgment of perpetual Imprisonment should be given in a Case, where there is no express Law to warrant it. “It was of ill Example, and unusual, That an Englishman should be exposed upon a Pillory, so many times a Year, during his Life. “That it was illegal, cruel, and of dangerous Example, That a Freeman should be whipped in such a barbarous manner, as, in Probability, would determine in Death. “That this was avowed, when these Judgments was [sic] given by the then Lord Chief Justice of the King’s Bench; who declared; ‘That all the Judges had met; and unanimously agreed, That where the Subject was prosecuted at Common Law for a Misdemeanor, it was in the Discretion of the Court, to inflict what Punishment they pleased, not extending to Life, or Member.’ “That as soon as they had set up this Pretence to a discretionary Power, it was observable how they put it in Practice, not only in this, but in other Cases, and for other Offences, by inflicting such cruel and ignominious Punishments, as will be agreed to be far worse than Death itself to any Man who has a sense of Honour or Shame....” 10 Journal of the House of Commons 247 (Aug. 2, 1689) (emphasis added). In all these contemporaneous discussions, as in the prologue of the Declaration, a punishment is not considered objectionable because it is disproportionate, but because it is “out of [the Judges’] Power,” “contrary to Law and ancient practice,” without “Precedents” or “express Law to warrant,” “unusual,” “illegal,” or imposed by “Pretence to a discretionary Power.” Accord, 2 Macaulay 204 (observing that Oates’ punishment, while deserved, was unjustified by law). Moreover, the phrase “cruell and unusuall” is treated as interchangeable with “cruel and illegal.” In other words, the “illegall and cruell Punishments” of the Declaration’s prologue, see supra, at 969, are the same thing as the “cruell and unusuall Punishments” of its body. (Justice Marshall’s concurrence in Furman v. Georgia, 408 U. S., at 318, observes that an earlier draft of the body prohibited “illegal” punishments, and that the change “appears to be inadvertent.” See also 1 Chitty 712 (describing Declaration of Rights as prohibiting “cruel and illegal” punishments).) In the legal world of the time, and in the context of restricting punishment determined by the Crown (or the Crown’s judges), “illegall” and “unusuall” were identical for practical purposes. Not all punishments were specified by statute; many were determined by the common law. Departures from the common law were lawful only if authorized by statute. See 1 J. Stephen, A History of the Criminal Law of England 489-490 (1883); 1 Chitty 710. A requirement that punishment not be “unusuall” — that is, not contrary to “usage” (Lat. “usus”) or “precedent” — was primarily a requirement that judges pronouncing sentence remain within the bounds of common-law tradition. 1 id., at 710-712; Ingraham v. Wright, 430 U. S., at 665 (English provision aimed at “judges acting beyond their lawful authority”); Granucci, 57 Calif. L. Rev., at 859; cf. 4 W. Blackstone, Commentaries 371-373. In sum, we think it most unlikely that the English Cruell and Unusuall Punishments Clause was meant to forbid “disproportionate” punishments. There is even less likelihood that proportionality of punishment was one of the traditional “rights and privileges of Englishmen” apart from the Declaration of Rights, which happened to be included in the Eighth Amendment. Indeed, even those scholars who believe the principle to have been included within the Declaration of Rights do not contend that such a prohibition was reflected in English practice — nor could they. See Granucci, supra, at 847. For, as we observed in Woodson v. North Carolina, 428 U. S. 280, 289 (1976), in 1791, England punished over 200 crimes with death. See also 1 Stephen, supra, at 458, 471-472 (until 1826, all felonies, except mayhem and petty larceny, were punishable by death). By 1830 the class of offenses punishable by death was narrowed to include “only” murder; attempts to murder by poisoning, stabbing, shooting, etc.; administering poison to procure abortion; sodomy; rape; statutory rape; and certain classes of forgery. See 1 Stephen, supra, at 473-474. It is notable that, during his discussion of English capital punishment reform, Stephen does not once mention the Cruell and Unusuall Punishments Clause, though he was certainly aware of it. See 1 Stephen, supra, at 489-490. Likewise, in his discussion of the suitability of punishments, Blackstone does not mention the Declaration. See 4 Blackstone, supra, at 9-19. C Unless one accepts the notion of a blind incorporation, however, the ultimate question is not what “cruell and unusuall punishments” meant in the Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment. Even if one assumes that the Founders knew the precise meaning of that English antecedent, but see Granucci, supra, at 860-865, a direct transplant of the English meaning to the soil of American constitutionalism would in any case have been impossible. There were no common-law punishments in the federal system, see United States v. Hudson, 7 Cranch 32 (1812), so that the provision must have been meant as a check not upon judges but upon the Legislature. See, e. g., In re Kemmler, 136 U. S. 436, 446-447 (1890). Wrenched out of its common-law context, and applied to the actions of a legislature, the word “unusual” could hardly mean “contrary to law.” But it continued to mean (as it continues to mean today) “such as [does not] occu[r] in ordinary practice,” Webster’s American Dictionary (1828), “[s]uch as is [not] in common use,” Webster’s Second International Dictionary 2807 (1954). According to its terms, then, by forbidding “cruel and unusual punishments,” see Stanford v. Kentucky, 492 U. S. 361, 378 (1989) (plurality opinion); In re Kemmler, supra, at 446-447, the Clause disables the Legislature from authorizing particular forms or “modes” of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed. E. g., Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947) (plurality opinion); In re Kemmler, supra, at 446-447. See also United States v. Collins, 25 F. Cas. 545 (No. 14,836) (CC R. I. 1854) (Curtis, J.). The language bears the construction, however — and here we come to the point crucial to resolution of the present case — that “cruelty and unusualness” are to be determined not solely with reference to the punishment at issue (“Is life imprisonment a cruel and unusual punishment?”) but with reference to the Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CONTROLLED SANITATION CORPORATION, v. DISTRICT 128 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, and Lodge 2805 of the International Association of Machinists and Aerospace Workers, AFL-CIO, Appellants. No. 74-1714. United States Court of Appeals, Third Circuit. Argued June 23, 1975. Decided Oct. 17, 1975. Certiorari Denied Feb. 23, 1976. See 96 S.Ct. 1114. Plato E. Papps, Louis P. Poulton, Washington, D. C., James A. Kelly, Scranton, Pa., Bernard Dunau, Mozart G. Ratner, Washington, D. C., for appellants. Arthur R. Littleton, Roberta S. Staats, Morgan, Lewis & Boekius, Philadelphia, Pa., for appellee. Before BIGGS, VAN DUSEN and ROSENN, Circuit Judges. OPINION OF THE COURT BIGGS, Circuit Judge. On September 22, 1970, plaintiff-appellee, Controlled Sanitation Corporation (the Company) filed an amended complaint against District 128 and Lodge 2305 of the International Association of Machinists and Aerospace Workers, AFL-CIO, (the Unions), defendants-appellants, basing its suit on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Company alleged that (1) a collective bargaining agreement existed between the Company and the Unions; (2) during its term on July 1, 1969 the Unions struck in violation of the no-strike clause contained in the agreement; and (3) as a result of the strike the Company “suffered the loss of its contract with the City of Scranton for the collection and disposal of refuse . . . .” The Company sought money damages for the alleged injury. The Unions denied that they had an agreement with the Company and asserted that if an agreement was found to exist all other issues presented were subject to determination by arbitration in accordance with the terms of that contract. A bifurcated jury trial ensued, and at the close of the first phase two questions were submitted to the jury, and were answered “Yes”. Interrogatory No. 1 asked the following question: “Did the defendant unions agree to be bound by the provisions of the contract entered into by the City of Scranton and Controlled Sanitation, including the provisions of the Administrative Agreement [the collective bargaining agreement] which is a part of that contract?” Appendix, p. 166. At the second phase of the trial, devoted primarily to the issue of the amount of damages, the jury was instructed to determine the amount of damages, if any, which the Company suffered because of its loss of the contract. The jury assessed damages in favor of the Company in the sum of $208,-000 and judgment was entered forthwith against the Unions in the sum indicated. The Unions moved for a new trial, and in their brief in support of these motions urged, among other things, that if there was found to be a contract, arbitration should be employed to determine the remaining issues. On appeal, the Unions raise the arbitrability issue and acquiesce in the jury’s determination that there was a collective bargaining agreement between the parties. Definitely, therefore, the issue of the existence or lack of existence of an agreement is not presented by this appeal. Two issues are raised on this appeal, and both relate to the question of whether, once the existence of the contract was established, the proper forum for the resolution of this controversy lay in the judicial process or in arbitration. We are required, first, to determine whether the contract’s arbitration and grievance procedures bound the Company to submit its claim for damages due to the strike of July, 1969 to arbitration. If they did, we must then confront the Company’s contention that judicial proceedings were warranted because the Unions’ conduct constituted a repudiation of the arbitration provisions. We find that the broad arbitration provisions of the contract encompassed this controversy and envisioned its submission to arbitration. Similarly, we believe the repudiation question is also subject to arbitration. I. The contract contains a standard no-strike clause (Article XVI) and grievance and arbitration procedure. Section I of Article XIII reads: “For the purpose of this Agreement, the term ‘Grievance’ means any dispute between the Employer and the Union or between the Employer and any employee concerning the effect, interpretation, application, claim of breach or violation of this Agreement or any other dispute which may arise between the parties.” The procedure for handling grievances is detailed in Article XIII as follows: “Section 2. Any such grievance shall be settled in accordance with the following grievance procedure: A. The dispute or grievance shall be taken up by the Steward, the aggrieved employee and the foreman of the department involved within 24 hours of the occurrence of the alleged grievance'. The foreman shall render a decision, by the close of the working day if handed in before noon, otherwise by noon of the following day. B. If no satisfactory settlement is reached between the Steward, and the foreman, the grievance shall be reduced to writing. The Shop Committee shall then investigate, present and discuss such grievance with the designated Employer official, who shall render a decision within two (2) working days. C. If no satisfactory settlement is reached, the Shop Committee shall call in the Business Representative and/or Grand Lodge Representative of the International Association of Machinists and Aerospace Workers who shall meet with the designated Employer official and the Shop Committee. . . . ” The agreement provided for the resolution of any unresolved grievance by arbitration as follows: “In the event the grievance or dispute is settled, such settlement shall be reduced to writing and copies distributed to all persons involved. In the event the grievance or dispute is not settled in a manner satisfactory to the grieving party (Union or Employer), within five (5) days, the grieving party may proceed, as follows: a Board of Arbitration shall be selected and such Board shall consist of one (1) member selected by the Union and one (1) member selected by the Employer. In the event these two (2) members of the Board fail to agree upon the disposition of the grievance or dispute within five (5) working days after meeting for this purpose, then they shall attempt to select a third member who shall act as chairman. If the parties fail to agree upon the third member, they shall petition the Court of Common Pleas of Lackawanna County to provide or select a third member. The decision of the majority of the Board shall be final and binding upon the parties to this agreement and shall be complied with within five (5) days, longer if agreed to by the parties, after the decision has been reached. Each party to this agreement shall pay 50% of the cost of the third member.” (emphasis added). Article XIII, Section 2(D). Finally, the agreement provided that the grievance-arbitration procedure provided would be the sole means for settling disputes (Article XIII, Section 6): “The grievance procedure as provided for herein shall constitute the sole and exclusive method of determination, decision, adjustment or settlement between the parties of any and all grievances as herein defined and the said grievance procedure provided herein shall constitute the sole and exclusive remedy to be utilized by the parties hereto for such determination, decision, adjustment, or settlement of any and all grievances and disputes as herein defined, whether or not either party to the contract considers the same as a material breach of the contract or otherwise.” (emphasis added). II. There are certain aspects of unfairness, we believe, in permitting the Unions to first deny — a vigorous denial which lasted for a period of approximately three and a half years — the existence of a valid contract for arbitration, and then when they have lost that point to permit them to assert that they are entitled to arbitration under the contract. We would have grave doubts about enforcing the arbitration proceeding if it were not for more important governing circumstances. First and most important are a series of decisions of the Supreme Court of the United States in which the Court has emphasized that arbitration of labor disputes is a federally favored policy under the Labor Management Relations Act, 29 U.S.C. § 141 et seq. Consequently, although the parties are bound to arbitrate only those disputes which they have agreed to arbitrate, all doubts or ambiguities should be resolved in favor of arbitration. In effect, there is a presumption in favor of arbitrability which should be dispelled only when the agreement explicitly exempts certain conduct from arbitration or when the terms of the agreement, read as a whole, clearly envision non-arbitrability. Typical of these decisions is United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 581-585, 80 S.Ct. 1347, 1353, 1354, 4 L.Ed.2d 1409 (1960), which stated: “Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. ... In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.” (emphasis added). Applying these precepts to the arbitration provisions of the agreement in this case, we must rule that the Company’s damage claim for breach of the no-strike clause is a dispute susceptible to arbitration. We are aware, of course, that the Company contends that the agreement delineates a grievance procedure oriented solely to employee grievances. In so doing, it points to the procedures established in Article XIII, Section 2(A), (B), and (C). In view of the language employed in the contract, however, we cannot accept this argument. The grievance and arbitration provisions of this contract are unusually broad. Section 1 of Article XIII makes clear that a grievance includes a dispute between the employer and the union involving a claimed breach of contract. Most importantly, Section 2(D) of that article specifically states that the employer may be the grieving party. A fair interpretation of the contract would then indicate that an employer — oriented grievance (i. e., an unsettled dispute) begins with the arbitration process or with Section 2(C). Finally, Section 6 of Article XIII represents a strong statement evidencing the parties’ intention that all disputes between the employer and the union, regardless of whether either party considers the dispute a material breach of contract, be subject to arbitration. Under these circumstances, the Company bound itself to arbitrate this damage claim. III. We turn to a consideration of the Company’s argument that the Unions repudiated the arbitration procedures, thereby permitting the Company to obtain judicial redress. There is an underlying and preliminary question here as to whether the alleged defense of repudiation is itself subject to arbitration, and the Unions urge us to hold that repudiation is an arbitrable question. This position, if valid, means that the district court, after finding the existence of a contract, should have required the parties to present to arbitration all other issues including repudiation itself. This is indeed a difficult question to answer and the law in respect to it is somewhat unclear. We acknowledge that “the circumstances of the claimed repudiation are critically important” for they determine whether an arbiter or a court will resolve the underlying dispute. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 262-263, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). In Drake Bakeries, the employer sued the union for damages resulting from an alleged one day strike. The union sought to stay the suit pending arbitration, but the employer opposed the stay arguing that the dispute was not arbitrable or, in the alternative, that the Union had repudiated the arbitration provisions. The Supreme Court held that the district court had properly stayed the action pending completion of arbitration. In rejecting the repudiation argument, the Court quoted from 6 Cor-bin, Contracts § 1443 (1961 Supp., n. 34, pp. 192-193) which suggests that the issue of repudiation is one for judicial resolution. 370 U.S. at 263, n. 10, 82 S.Ct. 1346. It then proceeded to rule that the union’s actions did not excuse the employer from its duty to arbitrate. Implicitly, repudiation would appear a justiciable issue. On the other hand, we must consider the effect of Operating Engineers Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972). In Flair, the Union brought an action seeking damages and injunctive relief from the Flair Corporation alleging breach of their collective bargaining agreement. In 1964 the Union had entered into an agreement with Flair, incorporating by reference the 1963 master agreement between the Union and several contracting associations. The Union and these associations in 1966 entered into a new master agreement requiring arbitration of “any difference . . . between the parties hereto which cannot be settled by their representatives within forty-eight hours of its occurrence.” In 1968, four years having passed since the memorandum agreement was signed, a Union business agent found that four of Flair’s employees were non-union and that their wages were unsatisfactory. Flair refused to recognize any obligation under the 1964 agreement. Subsequently, in November, 1968, the Union filed suit to compel arbitration according to the terms of the 1966 master agreement. After an evidentiary hearing, the District Court, in an unreported opinion, decided there was an enforceable agreement between the company and the Union during the period 1964r-68, but that the Union was barred by laches. The Court of Appeals affirmed, Operating Engineers Local 150 v. Flair Builders, Inc., 440 F.2d 557 (7th Cir. 1971). The Supreme Court, however, reversed, holding as we read the opinion that the court’s duty was limited to deciding whether the parties had entered into an enforceable agreement to arbitrate and that “once a court finds that, as here, the parties are subject to the agreement to arbitrate, and that agreement extends to ‘any difference’ between them” it is required to submit the case to arbitration. 406 U.S. at 491-492, 92 S.Ct. at 1713. The Court particularly emphasized that the parties had agreed to arbitrate “any difference.” 406 U.S. at 491, 92 S.Ct. 1710. Moreover, in reaching this result, the Court cited John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), a case which had been distinguished by the Court of Appeals. 406 U.S. at 490, 92 S.Ct. 1710. In Wiley, the employer had acquired by merger a company with an existing collective bargaining agreement. Following several disputes with the employer over employee rights, as well as pension fund payments, the Union brought an action to compel arbitration. The employer insisted, inter alia, that it had no duty to arbitrate because either (1) it was not bound by a collective bargaining agreement executed by its predecessor prior to the merger or (2) the Union had failed to utilize the prearbitration conferences required by the agreement. Justice Harlan, writing for a unanimous Court in Wiley, held that the employer was bound by its predecessor’s collective bargaining agreement. 376 U.S. at 550-551, 84 S.Ct. 909. He also concluded that the arbitrator should determine the effect of the union’s alleged failure to follow the procedures mandated in the agreement. The Court indicated that labor disputes may not be broken into procedural and substantive aspects but should be considered as clustered problems. Justice Harlan explained: “Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. In this case, one’s view of the Union’s responses to Wiley’s ‘procedural’ arguments depends to a large extent on how one answers questions bearing on the basic issue, the effect of the merger; e. g., whether or not the merger was a possibility considered by Wiley and the Union during the negotiation of the contract. It would be a curious rule which required that intertwined issues of ‘substance’ and ‘procedure’ growing out of a single dispute and raising the same questions on the same facts had to be carved up between two different forums, one deciding after the other. Neither logic nor considerations of policy compel such a result. “Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. Even under a contrary rule, a court could deny arbitration only if it could confidently be said not only that a claim was strictly ‘procedural,’ and therefore within the purview of the court, but also that it should operate to bar arbitration altogether, and not merely limit or qualify an arbitral award. In view of the policies favoring arbitration and the parties’ adoption of arbitration as the preferred means of settling disputes, such cases are likely to be rare indeed. In all other cases, those in which arbitration goes forward, the arbitrator would ordinarily remain free to reconsider the ground covered by the court insofar as it bore on the merits of the dispute, using the flexible approaches familiar to arbitration. Reservation of ‘procedural’ issues for the courts would thus not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.” 376 U.S. at 557-558, 84 S.Ct. at 918 (emphasis added). We believe the Flair and Wiley cases compel us to avoid the repudiation question in this ease and to require that it, also, be submitted to arbitration. The Company’s contention that the Unions’ actions amounted to a repudiation of the agreement to arbitrate necessarily involves a consideration of questions requiring an interpretation of contractual terms and relating to the merits of the dispute. Likewise, it represents a dispute between the parties “concerning the interpretation, application, claim or breach or violation of” the collective bargaining agreement. Accordingly, it is subject to the agreement’s arbitration procedures. We note that several courts posed with this question have reached the same result. H & M Cake Box, Inc. v. Bakery Workers Local 45, 493 F.2d 1226 (1st Cir. 1974); General Dynamics Corp. v. Marine Workers Local 5, 469 F.2d 848, 853-854 (1st Cir. 1972); Granny Goose Foods, Inc. v. Teamsters, 88 LRRM 2029, 2033 (N.D.Cal.1974). See also Radio Corp. of America v. Association of Professional Engineering Personnel, 291 F.2d 105, 110 (3d Cir. 1961); Local 542 v. Penn State Construction, Inc., 356 F.Supp. 512, 513-514 (M.D.Pa.1973); Case Note, 43 Fordham L.Rev. 880 at 884-885 (1975). But see NLRB v. State Electric Service, Inc., 477 F.2d 749 at 751—752 (5th Cir. 1973) (holding, however, that since breach of a no-strike clause is not enough to relieve the employer of the duty to arbitrate, it cannot be held to have vitiated the entire contract), cert. denied, 414 U.S. 911, 94 S.Ct. 234, 38 L.Ed.2d 149 (1973). In reaching the conclusion that the district court should have entered an order requiring the parties to arbitrate all issues, except that involving the existence of the contract, we remain mindful of the Supreme Court’s language in Drake Bakeries, supra, 370 U.S. at 266, 82 S.Ct. at 1353: “If the union did strike in violation of the contract, the company is entitled to its damages; by staying this action, pending arbitration, we have no intention of depriving it of those damages. We simply remit the company to the forum it agreed to use for processing its strike damage claims. That forum, it is true, may be very different from a courtroom, but we are not persuaded that the remedy there will be inadequate. Whether the damages to be awarded by the arbitrator would not normally be expected to serve as an ‘effective’ deterrent to future strikes, which the company urges, is not a question to be answered in the abstract or in general terms. This question, as well as what result will best promote industrial peace, can only be answered in the factual context of particular cases.” (footnote omitted). In view of this disposition, it is not necessary to pass upon other questions presented by the parties. The judgment will be vacated and the cause remanded with direction to the District Court to order arbitration on the issue of repudiation and all other issues consequential to it. . Interrogatory No. 2, also submitted to the jury, was as follows: “Was the refusal of C & A Bonding Co. to execute a performance bond on the application of Controlled Sanitation Corporation in favor of the City of Scranton caused by the strike of July 1, 1969?” Appendix, p. 166. The relevance of this question to the issue of damages becomes clear in light of the fact that the city terminated its contract with the Company because of the Company’s failure to obtain the bond. On this appeal, the Unions insist that the district court erred in excluding evidence that an earlier bond was obtained through forgery by the Company’s insurance agent, albeit without the knowledge or complicity of the Company. In view of our disposition of this case, we find it unnecessary to discuss or resolve this issue. . As is correctly stated in note 1, pp. 3-4 of the appellants’ brief: “Entry of judgment was based upon the following explanation made by the District Court in chambers prior to submission of the damage issue to the jury (Afppendix] p. 266): ‘The Court and counsel have conferred and we have arrived at the following: In the event of a verdict awarding damages to the plaintiff, it has been agreed that I will enter judgment on the verdict and Mr. Kelly [representing the Unions] will present his other defenses, which he has reserved, all of them, both factual and legal, in post-trial motions, and Mr. Littleton has agreed in view of the posture of this whole case that there will be no interest on the judgment until I rule on the post-trial motions because that would be the situation if we did not do this, if I did not enter judgment you would not be getting interest.’ ” . The Unions took the position, as has been indicated, that there was no contract and hence no arbitration agreement in existence, but they clearly reserved the right that should the court find otherwise then the dispute should be submitted to arbitration. The Company seems to take the position that the Unions are in effect estopped from asserting such a defense because they originally insisted there was no contract. We cannot agree with this position, and it seems to be unsupported by either adequate authority or logic. . The district court denied these motions in an order not accompanied by a written opinion. Consequently, in determining whether issues other than the existence of a contract should have been subject to the judicial process rather than arbitration, we find ourselves without the benefit of the district court’s reasoning. Nor do the record or briefs reveal the exact basis for the district court’s action. As we will explain, appellee suggests that (1) this controversy did not fall within the arbitration mechanism of the agreement or (2) if it did, the Unions by their actions repudiated the agreement. It deserves mention that in a memorandum opinion of September 10, 1970, denying the Unions’ motion to dismiss, the district court noted that “neither the plaintiff in its complaint nor the defendant in its motion, seek to have the court order arbitration.” It further explained that the right to arbitrate may be waived. Memorandum Opinion of September 10, 1970, p. 3, n. 1. Later, on February 11, 1971, in a memorandum opinion denying the Unions’ motion to dismiss the amended complaint, the district court stated that the Unions’ request for arbitration was premature since the issue of whether a contract existed must first be determined. Under these circumstances, we surmise that the district court did not ground its rejection of arbitration on the theory that the Unions’ request for arbitration was untimely. In any event, the parties have not raised that issue on this appeal. . Section 3 of Article XIII stipulates: “General grievances or disputes affecting the employees in a Unit as a whole and discharge grievances may be initiated by the Shop Committee directly at Step B.” . Quoted in Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 at 422 (3d Cir. 1973) (Adams, J., dissenting). The Warrior & Gulf Co. case formed part of the Steelworkers trilogy in which the Supreme Court enunciated the presumption of arbitrability rule. See also United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Supreme Court has expressed similar sentiments on numerous occasions. See e. g., Gateway Coal Co. v. UMW, 414 U.S. 368 at 377-379, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Atkinson v. Sinclair Refining Co., 370 U.S. 238 at 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) (contract not susceptible to construction requiring employer to arbitrate damage claim for breach of no-strike clause). See generally Note, 43 Fordham L.Rev. 880 at 881-882 (1975). . These provisions clearly distinguish this case from Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 (3d Cir. 1973), which involved an agreement of substantially narrower phraseology. Drawing every inference and construing every clause in favor of the Company, we would find it difficult to decide whether the parties intended arbitration of this dispute. Under the Steelworkers trilogy, such an ambiguity must be resolved in favor of arbitration. By such an illustration, we merely emphasize the breadth of this particular agreement. In fact, we do not find this agreement ambiguous. We do note that each case, though subject to the above-stated rule, must be decided on the basis of its own particular collective bargaining agreement. . The quote from Corbin included the following pertinent statement: “One who flatly repudiates the provision for arbitration itself should have no right to the stay of a court action brought by the other party.” . In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), an employee, alleging wrongful discharge by the employer, sued union officials who had decided not to take his grievance to arbitration — the fifth and last step of the grievance procedure. The Court defined the problem as one requiring it to determine what circumstances would permit judicial review of such claims even though relief has not been sought through procedures afforded by the contract. The Court noted: “An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 260-263 [82 S.Ct. 1346, 1350-1352, 8 L.Ed.2d 474]. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is es-topped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action.” 386 U.S. at 185, 87 S.Ct. at 914. At least one court has intimated that there may be a distinction between the type of forums necessary to resolve Vaca v. Sipes repudiation claims and repudiation claims of the variety presented here. Granny Goose Foods, Inc. v. Teamsters, 88 LRRM 2029, 2031, n. 4 (N.D.Cal.1974). The resolution of such an issue is beyond the scope of the instant appeal. . The implications of the Court’s opinion on other affirmative defenses, including repudiation, in cases involving similarly wide-ranging arbitration agreements were left unstated by the majority in Flair. Mr. Justice Powell, however, commented in dissent: “The effect of the Court’s decision also could be far reaching in the law of labor-management relations. It appears that the long-accepted jurisdiction of the courts may now be displaced whenever a collective-bargaining agreement contains a general arbitration clause similar to that here involved. If in such circumstances the affirmative defense of laches can no longer be invoked in the courts, what of other affirmative defenses that go to the enforceability of a contract? Does the Court’s opinion vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract?” 406 U.S. at 497, 92 S.Ct. at 1715. . The controversy revolves around the Unions’ insistence that the Company was not at liberty to reduce the number of workers. Whether the Company attempted such a reduction, whether the Company was bound— contractually or otherwise — to maintain a certain number of employees, and whether the Unions’ strike was in violation of the agreement are issues pertinent to the repudiation question as well as the underlying dispute. . We do not presume it necessary to enumerate the issues which the arbitration panel must resolve. Suffice it to say that, if the panel determines that the Unions did not repudiate the arbitration agreement, the panel should proceed to determine the legality of the strike and, if necessary, all questions relating to the amount and scope of damages suffered by the Company. See note 1, supra. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. In re MT. FOREST FUR FARMS OF AMERICA, Inc. GULF REFINING CO. OF LOUISIANA et al. v. FITZGERALD. COCKRELL et al. v. FITZGERALD (two cases). Nos. 8802-8808, 8614, 8894. Circuit Court of Appeals, Sixth Circuit. Aug. 16, 1941. Butzel, Eaman, Long, Gust & Bills, of Detroit, Mich. (Frank D. Eaman and Victor W. Klein, both of Detroit, Mich., J. S. Atkinson, of Shreveport, La., Tinsley Gil-mer, of Lake Charles, La., and George C. Schoenberger, Jr., of Houston, Tex., of counsel), for Gulf Refining Co. of Louisiana and others. Monroe & Lemann, of New Orleans, La., Butzel, Levin & Winston, of Detroit, Mich., and Battle, Levy, Fowler & Nea-man, of New York City (Monte M. Le-mann, of New Orleans, La., A. J. Levin, of Detroit, Mich., George Gordon Battle, of New York City, J. Blanc Monroe, of New Orleans, La., Henry H. Sills, of Detroit, Mich., Walter J. Suthon, Jr,, of New Orleans, La., and Pearson E. Neaman, of New York City, of counsel), for Freeport Sul-phur Co. Oxtoby, Robison & Hull, of. Detroit, Mich., and Herold, Cousin & Herold, of Shreveport, La. (Oscar C. Hull and Leo I. Franklin, both of Detroit, Mich., and Samuel L. Herold, Jr., and Sidney L. Herold, both of Shreveport, La., of counsel), for Ernest Cockrell. Robert S. Marx, Carl Runge, Lawrence I. Levi, and Julian G. McIntosh, all of Detroit, Mich., Lazarus, Weil & Lazarus and Cobb & Saunders, all of New Orleans, La., Fraser, Effler, Shumaker & Winn, of Toledo, Ohio (Eldon S. Lazarus and Eugene D. Saunders, both of New Orleans, La., Ross W. Shumaker and Robert C. Dunn, both of Toledo, Ohio, Charles S. Abbott, of Ann Arbor, Mich., and Nichols, Wood, Marx & Ginter, of Cincinnati, Ohio, of counsel), for trustee, Frank Fitzgerald. Before HICKS, HAMILTON, and MARTIN, Circuit Judges. MARTIN, Circuit Judge. This complicated litigation, involving millions of dollars, has been heard on the consolidated argument of nine cases and reaches us on appeal, in summary proceedings in a corporate reorganization in bankruptcy, in causes 8802-8808 from a judgment of the District Court for the Eastern District of Michigan against six appellants, Gulf Refining Company of Louisiana, Gulf Refining Company, Humble Oil and Refining Company, Shell Oil Company, Inc., Freeport Sulphur Company, all corporations, and Ernest Cockrell; on appeal from an interlocutory injunction in 8614, restraining appellants Ernest Cockrell, his curator ad hoc, and their attorneys, from further proceedings in a suit pending in the 25th Judicial District Court for the Parish of Plaquemines, State of Louisiana;' and on appeal from an interlocutory injunction in 8894, restraining appellants Ernest Cockrell and two Louisiana law firms, Herold, Cousin & Herold, and Plauche & Plauche, and also the Moran Corporation of the South and Isaac E. Heller, who are not appellants, from taking any further steps in another suit pending in the same Louisiana Judicial District Court. The appellee, Frank Fitzgerald, trustee for Mt. Forest Fur Farms of America, Inc., the corporate debtor, appealed in the main case (8802-8808 consolidated) from that portion of the judgment which denied the full relief sought; but, for brevity and clarity, will be designated only as appellee. On July 16, 1926, a corporation, Mt. Forest Fur Farm, was created under the laws of Michigan for the purpose of owning and operating fur and game farms in Michigan and elsewhere in the United States and in Canada and of manufacturing and dealing in furs and fur garments, including the right to deal in real estate in furtherance of its charter purposes. On March 29, 1928, this Michigan corporation sold its properties and assets to the debtor, Mt. Forest Fur Farms of America, Inc., incorporated under the laws of Delaware with like charter powers. The consideration received for this conveyance was stock of the new corporation and the assumption by it of all contracts and liabilities of the vendor. See Morlock v. Mount Forest Fur Farms of America, Inc., 269 Mich. 549, 257 N.W. 880. On September 28, 1928, Mt. Forest Fur Farm executed a deed to Mt. Forest Fur Farms of America, Inc., conveying the Louisiana land which is the subject matter of the present controversy. Before the debtor corporation was created, Mt. Forest Fur Farm, after considerable negotiation, entered into a written agreement with appellant Ernest Cockrell, an oil operator, to purchase, for a consideration of two dollars per acre, approximately 53,000 acres of land situated on the west side of the Mississippi River in Plaquemines Parish, Louisiana. This contract of sale contained a perpetual reservation in Cockrell of “one-eighth of all minerals, including oil, gas and sulphur, which may be found in, under and upon said land.” Earnest money was paid and, after much wrangling between the parties, during which Cockrell threatened to call the deal off unless a required first payment of purchase money was made by a specified date, a deed to 127/150ths’ interest in the land, described by townships and sections in Pla-quemines Parish, Louisiana, as containing 52,500 acres, more or less, was executed by Cockrell to Mt. Forest Fur Farm on April 11, 1927, and recorded the following day. This deed contained an ambiguous mineral reservation. The consideration, paid partly in cash and partly by the delivery of one promissory note and the assumption of another, totaled $88,900 for Cockrell’s 127/150ths’ undivided interest in the land. The other 23/150ths' undivided interest, owned by the Moran Corporation of the South, was acquired by Mt. Forest Fur Farm on June 30, 1928, by a deed of conveyance unquestionably reserving in the vendor all mineral rights. Obvious ambiguity in the mineral reservation clause of the deed from appellant Cockrell to Mt. Forest Fur Farm is the fundamental casus belli in the instant case. We quote the much-mooted language: “This Vendor is vested with and specially retains for himself, his heirs and assigns, and reserves from this sale, a perpetual royalty equal to one-eighth of all minerals, including oil, gas and sulphur, which may be found in, under, upon or beneath the lands herein above described, together with perpetual and exclusive rights to make and execute mineral leases on all or any portion of said lands for the exploration, development, production and marketing of any and all of said minerals, and also including perpetual rights of ingress and egress solely for said purpose of exploration, development, production and marketing of said minerals, at all times, and likewise the use of so much of the surface of said premises as may be found necessary and convenient for the exploration, development, production and marketing of said minerals which may be found and produced from said premises.” This reservation has been construed by the Supreme Court of Louisiana, which, adversely to the contention made by Mt. Forest Fur Farms, Inc., plaintiff in a suit brought in Louisiana to recover bonus money amounting to $50,000 which Cockrell received from the Gulf Refining Company for granting and extending a mineral lease, held that by virtue of the above quoted clause in his deed to Mount Forest Fur Farm, Cockrell had retained the perpetual and exclusive right to make and execute mineral leases on all or any portion of the land; that he had retained not merely the right to select the lessee and to fix the terms of the lease, and to lease as agent, but also the right to lease for his own benefit and that of his heirs and assigns “save as otherwise expressed” in the reservation; and that he was entitled to “all that the lease might bring, save as therein specified.” Accordingly, denying the claim of Mt. Forest Fur Farms, the court affirmed a judgment awarding Cockrell the bonus money. But the court announced that it was not concerned with the right to the royalties from the lease. Mt. Forest Fur Farms of America, Inc. v. Cockrell, 179 La. 795, 155 So. 228, 229. If we have jurisdiction, this undecided issue, inter alia, must be decided here; if we have not, a court of competent jurisdiction should be the forum. The lease from Cockrell of all mineral rights in the land to Gulf Refining Company of Louisiana was dated March 15, 1928; and, subsequently, on May 7, 1928, Roxana Petroleum Corporation (now appellant Shell Oil Company, Inc.) acquired from the Moran Corporation of the South a mineral lease on the remaining 23/150ths’ interest in the 52,500 approximate acreage. On July 18, 1928, Roxana Petroleum Corporation and appellant Humble Oil and Refining Company obtained from the State of Louisiana, through its Governor, Huey P. Long, a lease of the mineral rights on the bed of Lake Grand Ecaille. By contract of October 8, 1929, appellants Humble Oil and Refining Company, Gulf Refining Company of Louisiana and Shell Oil Company, Inc. (which had succeeded Roxana), agreed to develop and operate jointly all mineral leases owned by them or subsequently acquired in an area which embraced the 52,-500 acre tract. On February 10, 1932, appellant Freeport Sulphur Company subleased from the three oil companies all their rights and privileges under their respective leases to explore for, mine, produce and market sulphur. After the discovery of oil on the property, the Board of Commissioners for Buras Levee District filed suit claiming title to 1,136 acres of the land. Mt. Forest Fur Farms of America, Inc., the Moran Corporation of the South, the -three oil companies, and Ernest Cockrell ’were named as defendants; and, after a vigorous defense, succeeded in winning a four to three decision in the Supreme Court of Louisiana, rejecting the claims of the Levee Board. Board of Commissioners for Buras Levee District v. Mt. Forest Fur Farms of America, Inc., 178 La. 696, 152 So. 497. But the Levee Board persisted in making claim to other portions of the realty. Cock-rell countered by filing a declaratory judgment suit in the Federal Court which resulted in a decision that the judgment of the Louisiana Supreme Court in the Buras Levee Board suit was res adjudicata.only as to the 1,136 acres there in controversy and that the title-claim of the Buras Board to the remaining portion of the land had not been adjudicated. Board of Com’rs for Buras Levee Dist. v. Cockrell, 5 Cir., 91 F.2d 412. In consequence of this decision, the oil companies, the sulphur company and Cock-rell, under advice of counsel, compromised the adverse claims of the Levee Board and other intertwined claimants. More than $475,000 has been paid to the Levee Board, its assignees, and the holders of over-riding royalty agreements under these compromise settlements. Appellants are presently paying royalties on their consolidated leases from the Levee Board. In the summer of 1929, the oil companies drilled for oil and produced it in paying quantities in June, 1931. Since then, their production of oil from the premises in controversy has been continuous. Likewise, the sulphur company has continuously produced sulphur since December, 1933. The operations of the mineral lessees will be detailed later in this opinion. At no time has either the debtor corporation or its predecessor, Mt. Forest Fur Farm, ever attempted to prospect the land, or produce oil, sulphur, or minerals therefrom. The use and occupancy of the property by these successive owners has been limited exclusively to fur gathering purposes. Due to its default on contracts with many persons for the breeding of muskrats, Mt. Forest Fur Farms of America, Inc., on August 21, 1931, consented to receivership in a stockholders’ suit in chancery in the Circuit Court for Wayne County, Michigan. The receiver took charge and carried on the business of trapping on the company’s Louisiana, property until abandonment of this enterprise in the early part of 1932. An involuntary creditors’ petition for reorganization of the debtor under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, was filed and allowed in the United States District Court. On appeal, the district court order approving the petition for reorganization was reversed and the cause remanded. Mount Forest Fur Farms of America, Inc. v. Farnsworth, 6 Cir., 92 F.2d 342. ■ A voluntary petition of the debtor for reorganization under Section 77B ensued and was approved by the district court, whose orders approving the petition, overruling creditors’ motion to dismiss, and appointing Frank Fitzgerald, trustee, were affirmed on appeal. In re Mt. Forest Fur Farms of America, Inc., 6 Cir., April 5, 1939, 103 F.2d 69. Shortly after his appointment as temporary trustee, appellee obtained a show-cause order against which appellants filed motions to quash on jurisdictional grounds. No ruling was made upon the motions. On January 4, 1940, appellee Fitzgerald, then and now permanent trustee, filed an amended petition upon which he obtained an order to show cause why appellants should not be enjoined from exploring, drilling, mining, selling, moving, or otherwise appropriating oil, gas, sulphur and other minerals from the debtor’s property in Louisiana; or, in the alternative, why appellants should not be directed to pay unto the petitioning debtor the royalties theretofore accrued or thereafter accruing for oil, gas, sulphur and other minerals already removed, or which might thereafter be removed, if it should be made to appear that appellants have the right to extract the minerals but have failed in the discharge of their legal obligation to pay the royalties due thereon. Seasonably to the return day of the show-cause order, appellants, entering only special appearances, filed motions to quash and to dismiss the summary proceedings against them, averring that the court had no jurisdiction to enter the show-cause order of January 4, 1940. These motions to quash and to dismiss presented elaborately the basis of objection of appellants to the jurisdiction. However, after hearing a two days’ argument, the district court entered an order postponing disposition of the motions until the trial on the merits. Finally, after hearing all the evidence in the case, the motions to quash and to dismiss the summary proceedings were denied. The alternative motions of appellants for a stay of the proceedings and for a reference of the issues to the Louisiana State Courts for determination were likewise denied. The trustee for the debtor corporation, moreover, prevailed upon the merits. The determinative adjudications of the district court were, as follows: (1) The interests of appellants under ■ the lease from Cockrell to the Gulf Refining Company of Louisiana were limited to one-eighth of 127/lSOths of the minerals in controversy, and the debtor was vested with the other seven-eighths therein. (2) Appellant, Freeport Sulphur Company, must account to the trustee for the debtor, on the basis of the proceeds from seven-eighths of 127/150ths of the sulphur produced (less the cost of production and a reasonable profit), for the minerals removed from August 23, 1938 (the date of the original petition and show-cause order), to date. (3) Likewise, appellant, Humble Oil and Refining Company (the operating company under the agreement among the appellant oil companies), must account to the trustee for the proceeds of seven-eighths of 127/150ths of the oil produced, less the cost of production and a reasonable profit. (4) Should appellant, Freeport Sulphur Company, whose operations were expressly conditioned in the decree, continue to produce sulphur from the land and should appellant, Humble Oil and Refining Company, continue to produce oil, each shall respectively account to the trustee for seven-eighths of 127/150ths of the sulphur and oil produced, less the cost of production and a reasonable profit to be subsequently determined. (5) A hearing was ordered to be held to ascertain such cost of production and reasonable profits and the amounts now due or hereafter to become due from the production of oil and sulphur, pending which hearing the above-named appellants shall pay into the registry of the court, for future disposition by court order, four dollars a ton on all sulphur and ten cents a barrel on all oil thereafter produced from the entire mineral interest in all the property. (6) Upon failure of the two above-named appellants- to pay the amounts specified in the preceding paragraph, each shall be restrained and enjoined from further production of sulphur and oil on the property. Cases 8802-8808 are here on appeal from the judgment and decree of the district court, both upon the merits and upon the jurisdictional motions and the motions to stay and to refer the issues to the courts of Louisiana. Case 8614 is before us on appeal from the interlocutory injunction, restraining further steps or proceedings by appellants in suit entitled Mt. Forest Fur Farms of America, Inc., v. Ernest Cockrell, et al. [No. 1190], instituted March 30, 1936, by the debtor corporation concerning similar subject matter to that embraced in cases 8802-8808 and now pending in the 25th Judicial District Court for the Parish of Plaquemines, Louisiana. Appellants challenged the jurisdiction of the United States District Court to issue the injunction. Likewise, consideration of case 8894 presents in the first instance the question of jurisdiction involved in cases 8802-8808. The appeal is from an interlocutory injunction, restraining further steps by appellant Cockrell and the law firms of Herold, Cousin & Herold, and Plauche & Plauche, all appellants, and the Moran Corporation of the South and Isaac E. Heller, in a pending suit entitled Ernest Cockrell, et al. v. Moran Corporation of the South, et al. [No. 1603], filed October 14, 1940, in the 25th Judicial District Court for Plaquemines Parish, Louisiana. In its decree, the court below recited that the subject matter in the pending Louisiana case [No. 1603] is substantially identical with the issues adjudged in cases 8802-8808. Manifestly, if the district court lacked jurisdiction in cases 8802-8808, the interlocutory injunctions in cases 8614 and 8894 were improvidently granted. In all these appealed cases, we confront at the threshold the question whether the district court had jurisdiction to enter the show-cause orders. If a negative answer is impelled by applicable law, there should be no further adjudication here. (1) The challenged jurisdiction must be resolved, not by a test of title, but by determination of the issues of possession of the res in controversy as of the time reorganization proceedings were instituted by the debtor corporation. No jurisdiction vests in a court, of bankruptcy to adjudicate, in a summary proceeding, a controversy over property held adversely to the bankrupt estate, except by consent of the adverse claimant, or where the adverse claim is merely color-able. Unless summary jurisdiction exists, the trustee in bankruptcy must resort to plenary suit. Harrison v. Chamberlin, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 897; In re Cadillac Brewing Co., 6 Cir., 102 F.2d 369. Compare First National Bank v. Chicago Title & Trust Co., 198 U.S. 280, 25 S.Ct. 693, 49 L.Ed. 1051. The Supreme Court, while recognizing in Taubel, etc., Co., v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770, the power of Congress to determine the extent of the exercise of bankruptcy jurisdiction by summary proceeding in Federal Courts through possession of the res or otherwise, held that no summary jurisdiction to adjudicate the validity of a substantial adverse claim to property not in possession of the Federal Court, except by consent of the adverse claimant, had been conferred by the Bankruptcy Act of 1898, 11 U.S.C.A. § 1 et seq. Mr. Justice Brandéis stated (264 U.S. at page 433, 434, 44 S.Ct. at page 399) : “As every court must have power to determine, in the first instance, whether it has jurisdiction to proceed, the bankruptcy court has, in every case, jurisdiction to determine whether it has possession actual or constructive. It may conclude, where it lacks actual possession, that the physical possession held by some other persons is of such a nature that the property is constructively within the possession of the court. * * * But in no case where it lacked possession, could the bankruptcy court, under the law as originally enacted, nor can it now (without consent) adjudicate in a summary proceeding the validity of a substantial adverse claim.” Cf. First National Bank of Negaunee v. Fox, 6 Cir., 111 F.2d 810. It was reasserted in Harris v. Brundage Co., 305 U.S. 160, 59 S.Ct. 131, 83 L.Ed. 100, that in every case the bankruptcy court has power, in the first instance, to determine whether it has such actual or constructive possession as is essential to procedural jurisdiction, and to determine controversies relating to property in possession of agents of the debtor at the time of the filing of the petition in bankruptcy. In a recent case, Thompson v. Magnolia Petroleum Company, 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876, the Supreme Court said: “Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.” The rule, that if ownership is claimed by the bankrupt all property in his possession at the time of the filing of the petition in bankruptcy passes into the custody o-f the bankruptcy court, has been applied to a railroad reorganization under Section 77 of the Bankruptcy Act, as amended March 3, 1933, c. 204, Sec. 1, 47 Stat. 1474, 11 U.S.C.A. § 203 note. But the right of the court to issue injunctions and all writs necessary to protect its physical possession from interference was predicated upon possession of the res. Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 78 L.Ed. 1020. Appellee has made the point that in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island Ry., 294 U.S. 648, 55 S.Ct. 595,79 L.Ed. 1110, which sustained the constitutionality of Section 77 of the Bankruptcy Act, the highest court maintained the power of a bankruptcy court to issue, in a summary proceeding, injunctive process to prevent interference with a plan of railroad reorganization. The opinion, however, does not gainsay the principle that jurisdiction in a summary proceeding rests upon actual or constructive possession of the res. No adverse claim by one in possession was involved and the asserted liens were not disputed. The power of a district court to issue process for service outside the district, pursuant to Section 77(a), was upheld. A provision similar to that contained in Section 77(a) will be found in Chapter X, § 111, of the Chandler Act, 11 U.S.C.A., § 511: “Where not inconsistent with the provisions of this chapter, the court in which a petition is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and its property, wherever located.” Neither exclusive jurisdiction of the debtor nor power to issue process outside the district confers upon the bankruptcy court the power, in a summary proceeding, to decide, without the consent of an adverse claimant, a controversy concerning property in his possession, unless his claim be merely colorable. Were it otherwise, every bona fide possessor of property held adversely to a bankrupt could be haled into a distant Federal Court to defend his right to the property whenever the trustee in a reorganization proceeding should choose to corral him summarily. No such unreasonable election may be deduced from the language of the statute, or from the authorities which have been considered. (2) Does the res in controversy here consist of mineral rights or servitudes susceptible of separate ownership and possession apart from the ownership and possession of the surface of land? Does the exercise of a mineral right or servitude by extracting and actually possessing the minerals from land constitute possession of the right or servitude? To determine the issue of jurisdiction, these questions must be answered in accordance with Louisiana law. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The highest state court is the final authority on state law. Fidelity Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109. We must, therefore, carefully study the opinions of the Supreme Court of Louisiana. It has long been settled law in Louisiana that oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part, and that a grant or reservation of such oil and gas carries only the right to extract such minerals from the soil. Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207, 242, citing eight earlier Louisiana decisions. The court said: “ * * * No matter what the intention of the parties be, the owner of lands cannot convey or reserve the ownership of the oils, gases, and waters therein apart from the land in which they lie; and we so hold, because the owner himself has no absolute property in such oils, gases, and waters, but only the right to draw them through the soil and thereby become the owner of them.” 150 La. at page 863, 91 So. at page 245. In Wemple v. Nabors Oil & Gas Co., 154 La. 483, 97 So. 666, the court declared that there are only two kinds of estates in land: (1) corporeal, termed ownership [Civil Code, Art. 505] and (2) incorporeal, termed servitude [Civil Code, Arts. 533, 646, 647]; and that mineral servitudes grant merely the right to extract and appropriate minerals. Decision of the case, which was a civil action by a landowner for slander of title, was grounded, however, upon the failure of one who had acquired mineral rights from a prior owner to explore for minerals within the required ten years’ prescription period. We find nowhere in the opinion an intimation that the right of a person entitled to a mineral servitude to possess the same through exercise should be denied. Appellee places what seems to us insecure dependence upon Federal Land Bank of New Orleans v. Mulhern, 180 La. 627, 157 So. 370, 95 A.L.R. 948. The defendant had mortgaged real property to the plaintiff. Subsequently, he entered into a mineral lease with a third party, who drilled and brought in a gas well. A foreclosure suit, brought by the mortgagee, was sustained upon the ground that either partial or total exhaustion of the gas supply would impair “the real right to take gas from the land,” and would necessarily depreciate the security of the mortgage. The emphatic fact was that the mortgage antedated the mineral lease. Appellee stresses the following language of the original opinion: “While the owner of land does not own the fugitive minerals, such as oil and gas, beneath its surface, but only the right to reduce them to possession and ownership, and while such minerals are not susceptible of ownership apart from the land [citing Frost-Johnson Lumber Co. v. Sailing’s Heirs, supra], yet those minerals, while in place in the ground beneath the surface, unsevered, are real estate, a part of the land itself, a part of the realty, as much so as timber, coal, iron, and salt.” 180 La. at page 634, 157 So. at page 373. But, on rehearing, the court explained: “What the court intended to state was, that the owner of real estate unquestionably has a right to go on his land and reduce to possession fugitive minerals, in order to gain complete ownership thereof. He can therefore contract away to another, in the form of a mineral or mining lease, this real right.” Appellee leans heavily upon a case decided fifteen years ago, Exchange National Bank of Shreveport v. Head, 155 La. 309, 99 So. 272, 274. The facts were that a mortgage creditor began a foreclosure proceeding in the state court, pending which the mortgagor (Shields) was adjudged bankrupt. The mortgagee dismissed his state court action and proved his debt in bankruptcy. The property of the bankrupt was ordered sold, free of all liens and incumbrances; the mortgagee purchased the mortgaged land at the bankruptcy sale, and instituted suit in the state court against the mineral lessee (Head) for cancellation of the mineral lease from the public records. The mortgagee (the Exchange National Bank) prevailed. It was held that, though the mineral lease had been executed before the mortgage, prior recordation of the mortgage entitled the trustee in bankruptcy, being vested with all rights of the mortgage creditor, to sell the land free of the rights of the mineral lessee (Head). Certain dicta in the opinion of. the Supreme Court of Louisiana is stressed by appellee: “ * * * The only right which was conveyed by Shields to Head under the oil lease was a right of servitude (an incorporeal right), a real right on the land, a right to extract the oil and utilize the gas from the land, and when Shields surrendered the land in bankruptcy, this real right (this servitude) went with the land into the possession of the trustee in bankruptcy and likewise the possession of the land, for as we have already seen (Nabors Oil & Gas Co. v. Louisiana Oil & Refining Co., supra [151 La. 361, 91 So. 765]), the lessee under an oil and gas lease cannot deny or contest the right of possession of his lessor.” The opinion writer in the Head case, in citing Nabors Oil & Gas. Co., supra, evidently did not recall that on rehearing of the Nabors case [151 La. 361, 91 So. 778]; the court had said: “A majority of the members of this court did not concur in the expressions in the opinion originally handed down in this case. * * * the doctrine that an ordinary lessee, as of a house or farm, cannot dispute the title of his lessor during the term of the lease, has no application to a contract by which a person acquires mineral rights, in the form or name of a contract of lease. Such a contract, in that respect, is more like a sale than an ordinary lease.” Nor can the obiter dicta in the Head case be reconciled with later decisions: Bodcaw Lumber Co. of Louisiana v. Cox, infra, and Connell v. Muslow Oil Co., infra. It was held in Bodcaw Lumber Co. of Louisiana v. Cox, 159 La. 810, 106 So. 313, 314, that a sale of land for taxes does not divest the reservation of a prior mineral servitude. The court said that in all cases cited “in which it was held that oil and gas beneath the surface is not subject to ownership, as corporeal property, it was plainly and distinctly held that the grant or reservation of the oils and gases carried with it the right to extract such minerals from the soil; that such right was an incorporeal right — a real right or servitude.” It was further declared that “when the plaintiff reserved the oil, gas, and minerals under the land sold, it reserved the right to mine for such minerals and to reduce them to possession, and, this being a real, incorporeal right, the plaintiff unquestionably has a standing in court to vindicate and protect such right * * In the Bodcaw case, in holding that plaintiff’s ownership of the mineral servitude could not be. disturbed by a tax sale, the court relied upon Shaw v. Watson, 151 La. 893, 92 So. 375, 378, where it had been denied that a transfer of mineral rights is nothing more than the imposition of an incumbrance, like a mortgage or an ordinary lease for occupancy or cultivation; but on the contrary had been announced that the sale of mineral rights, constituting a servitude upon the land, of the character of incorporeal real property, is an alienation of a part of the landowner’s interest in land and is “a dismemberment of his ownership,” being “more like a sale of an undivided interest in the land than like the imposing of a mortgage or an ordinary lease upon the land.” Adherence to the same concept was manifested in Wiley v. Davis, 164 La. 1090, 115 So. 280, and in Palmer Corporation of Louisiana v Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellees, v. Mark A. LEVINE, Commissioner, Division of Correction, Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellants. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of the Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellants, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellees. Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellants, v. Mark A. LEVINE, Commissioner, Division of Correction; Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellees. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellees, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellants. Nos. 78-6416 to 78-6419. United States Court of Appeals, Fourth Circuit. Argued Nov. 14, 1978. Decided Dec. 13, 1978. Stephen B. Caplis, Asst. Atty. Gen., George A. Nilson, Deputy Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Maryland and Clarence W. Sharp, Chief, Criminal Division, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants. Nevette Steele, Jr., Baltimore, Md. (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., on brief), Richard L. North, Baltimore, Md. (Mary S. Elcano, Lawrence B. Coshnear, Sandra D. Boteler, Legal Aid Bureau, Inc., Richard G. Fish-man, Keystone Legal Services, Baltimore, Md., on brief), Paul D. Bekman, Baltimore, Md. (Kaplan, Heyman, Greenberg, Engleman & Belgrad, P.A., Baltimore, Md., on brief), for appellees. Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, and PHILLIPS, Circuit Judges, sitting En Banc. PER CURIAM: These are appeals and cross-appeals from decisions of the District Court of Maryland in which it was concluded that the conditions in two penal institutions in Maryland were in violation of the Eighth Amendment’s command against cruel and unusual punishment. Johnson v. Levine, 450 F.Supp. 648 (D.Md.1978); Nelson v. Collins, 455 F.Supp. 727 (D.Md.1978). In Hite v. Leeke, 564 F.2d 670 (4th Cir. 1977), we held that “double-celling,” the housing of two prisoners in a cell initially designed for single occupancy, was not itself a violation of the Constitution. It, of course, may be a relevant factor when other consequences of overcrowding create deprivations or impose unusual restrictions and disadvantages upon the prison population. In their opinions, the district judges placed great emphasis upon “double-celling,” which was extensive in both institutions, but other deprivations were also shown. The “double-celling” was clearly a consequence of overcrowding, and the overcrowding had other consequences. The physical and personnel resources of both institutions were taxed. The overcrowding limited opportunities for recreation, for instruction and rehabilitation, complicated the maintenance of sanitation, required meal service in three separate shifts and probably contributed to a high level of violence and psychological injury to some prisoners. The medical facilities and staffs were also overtaxed, and on cross-appeals there is a complaint that medical care itself was constitutionally deficient. With the elimination of substantial overcrowding, however, the deficiencies of the medical facilities, staffs and services will be diminished. Under the totality of all of the circumstances, we conclude that the district judges properly found a constitutional violation warranting judicial direction that the overcrowding be eliminated. Overcrowding, with all of its consequences, can reach such proportions that the impact of the aggregate effect amounts to cruel and unusual punishment. We believe that the district judges reasonably found that the point had been reached here. Hence, we affirm the entry of injunctive relief directed to elimination of the overcrowded conditions, and the denial of injunctive relief directed to specific areas of alleged deficiencies such as medical care. The district judges directed accelerating steps for the elimination of overcrowding by April 1, 1979. Maryland, however, has come forward with a detailed plan involving the construction of a new facility, incorporating the previous planned conversion of another, and the early release of prisoners thought appropriate for release which will accomplish the objective of elimination of overcrowded conditions by June 1, 1980. The district judges imposed a short compliance timetable. It was appropriate, of course, to emphasize the fact that the situation was serious, and to require that remedial steps should be undertaken promptly. The release of prisoners properly subject to parole may proceed apace, but we are convinced that the overcrowded conditions cannot be completely eliminated without the construction and utilization of a new facility, which Maryland proposes to have available by June 1, 1980. Since the constitutional violation here is not as extreme or as shocking as in some of the reported cases, and since Maryland’s plan is practical and reasonable and will achieve the required objective of elimination of overcrowding in its penal institutions, we think its plan and its schedule deserve judicial approval. In addition to the claims respecting the general prison populations, in Johnson the court found the conditions of imprisonment in the Special Confinement Area, a section housing mentally disturbed prisoners, were so severe they constituted cruel and unusual punishment. The judge ordered the SCA closed as soon as the inmates could be moved to state mental institutions. In Nelson the court found extended confinement in the punitive isolation unit violated the Eighth Amendment. The judge imposed limitations on the use of the cells. We affirm these findings of constitutional deprivation and the grant of appropriate relief. The findings of constitutional overcrowding are affirmed. The decree in Johnson, insofar as it affects the Special Confinement Area, and the decree in Nelson, insofar as it deals with punitive isolation, are both affirmed. The denial of specific relief in other respects is affirmed. The cases are remanded to the district court with instructions to fashion new decrees which will incorporate Maryland’s plan and its schedule for the elimination of overcrowding in the two penal institutions. Judge Russell and Judge Widener dissent from the conclusion that a deficiency of constitutional proportion was shown. They reserve the right later to file an opinion expressing their views. AFFIRMED IN PART AND REMANDED. 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_oththres	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Joseph E. SLEEMAN, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant. No. 18534. United States Court of Appeals Sixth Circuit. July 25, 1969. Paul O. Strawhecker, Grand Rapids, Mich., for appellant, Robert A. Straub, Detroit, Mich., on the brief. F. William McKee, Grand Rapids, Mich., for appellee, Rhoades, McKee & Boer, Grand Rapids, Mich., on the brief. Before PHILLIPS, EDWARDS and PECK, Circuit Judges. EDWARDS, Circuit Judge. Appellant, Chesapeake and Ohio Railway Co., appeals from an award of damages entered in favor of an employee, Joseph Sleeman, after a trial under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1964), before a District Judge in the Western District of Michigan. The first and principal contention is that contrary to Sleeman’s argument and the findings of the District Judge, the design and lighting of the parking lot owned by appellant railroad where Sleeman was injured did not play any part at all in his injury. Sleeman was injured by being struck by a privately-owned mail truck as it was leaving the C & 0 station in Grand Rapids. At the time he was on duty as an assistant coach foreman working the night shift. It was raining hard when Sleeman attempted at about 5:50 a. m. to go from a coach to his car in the station parking lot, and thence to his office in the coach yard. As he was crossing an area of the parking lot in front of the C & O station which was used by both pedestrian and vehicular traffic, he was struck by the mail truck. Sleeman testified that he had looked and had seen the mail truck, but had judged that it would pass behind him and that he continued across the area without looking again until the instant of impact. The impact occurred in the left-hand portion of the vehicular accessway, viewed from the point of view of the driver of the truck. Plaintiff presented evidence, including an expert on design of parking lots, which tended to establish that the lighting of the C & O lot at the point of injury was below nationally recognized standards and that the design of the lot failed by layout or markings to define either vehicular or pedestrian lanes. The Federal Employers’ Liability Act provides in part: “Every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C. § 51 (1964). The Supreme Court has interpreted this language as follows: “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence. (Emphasis added.) “The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506-507, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957). (Footnotes omitted.) The District Judge was the trier of the facts in this case. We think there was evidence before him from which he could have concluded that the C & O was negligent because of inadequate lighting and failure in any manner to define either vehicular or pedestrian traffic lanes in its parking lot. We cannot say that the “employer’s negligence [did not] play * * * any part, even the slightest, in producing the injury.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957). Appellant also contends that the District Judge erred in finding plaintiff Sleeman not guilty of contributory negligence because “the undisputed proof” was contrary. Where, however, an area of irregular shape is created for public use by vehicles and pedestrians and there is no definition of the driveway, we cannot hold as a matter of law that Sleeman’s conduct on the night in question was contrary to that of an ordinarily prudent person. Cf. Ware v. Nelson, 351 Mich. 390, 88 N.W.2d 524 (1958). Appellant did not timely file a request for a jury trial. We find no abuse of judicial discretion in the District Judge’s denial of appellant’s belated demand for jury trial. Nor do we find such abuse in the grant of separate trial in C & O’s suit for contribution against the truck driver and owner. No other appellate issues of substance are presented, except for one dealing with damages. The District Judge did, as appellant asserts, decide to award damages without reducing them to present worth. He did so because he held that inflationary trends would offset any present worth reduction. See Gowdy v. United States, 271 F.Supp. 733 (W.D.Mich. 1967). Damages in an FELA case are governed by federal law: “[T]he proper measure of damages is inseparably connected with the right of action, and in eases arising under the Federal Employers’ Liability Act it must be settled according to general principles of law as administered in the Federal courts.” Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916). This same case provides: “[I]n computing damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.” Chesapeake & Ohio Ry. v. Kelly, supra at 491, 36 S.Ct. at 632. To date Chesapeake & Ohio Ry. v. Kelly has not been amended or overruled, and it was error to fail to apply it to the computation of future earnings. As to the inflationary trend offset, this record provides no evidentiary basis for the decision of the District Judge. Gowdy v. United States, supra, in which the District Judge arrived at the same conclusion after hearing some economic testimony is not authority for the offset in this case, since it has been reversed on other grounds. Gowdy v. United States, 412 F.2d 525 (6th Cir.1969) Nor do we encourage the trial courts of our circuit to explore such speculative influences on future damages as inflation and deflation. Of course, the nation’s economic history since the 1930’s would appear to make the use of present wages as the standard for loss of future earnings somewhat unfair to plaintiffs. But as to the future, the inflation versus deflation debate rages inconclusively at the highest policy levels of our government, in national electoral campaigns, in learned economic journals and is exemplified in the daily gyrations of the stock markets. The debate seems unlikely to be resolved satisfactorily in one personal injury trial. And if testimonal resolution of this factor bearing on the future is attempted, the door is opened to similarly speculative and debatable offsets tending in other directions. See McWeeney v. New York, N. H. & H. R. R., 282 F.2d 34 (2d Cir.1960). Harper" & James accurately describes the past history of this debate and the present prevailing view: “Future trends in the value of money are necessarily unknown and so always render such damages speculative in a way we cannot escape. If the estimates represent a straight-line projection of present living costs, they will be frustrated by fluctuations either way. If prophecy of change is heeded, frustration will follow if no change, or the opposite change, occurs. When courts have consciously grappled with the problem they have either found all prophecy too speculative and so, perforce, have taken the equally speculative course of betting on a continuance of the status quo; or they have made intuitive and not always very wise judgments that present conditions represent a departure from some imaginary norm to which they think we shall rapidly return. It is not at all clear that courts would be willing to hear experts on the matter, or that they would get much real help if they did. For the most part the problem —which is inevitably present in every case of future loss — is not analyzed and the present value of money is assumed to be the proper basis.” II F. Harper & F. James, The Law of Torts § 25.11 (1956). (Footnotes omitted.) Sleeman’s injuries were severe and there was evidence that they would have permanent effect. The award (save for the present worth issue) is justified by the evidence and certainly does not shock our conscience. The judgment of the District Court on issues of liability and damage is affirmed, except as noted. The judgment is vacated and remanded for recpmputation of damages for future earnings based on the present worth formula of Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117 (1916). Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_1-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal". UNITED STATES of America, Plaintiff-Appellee, v. Johnny KING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Turley SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cleveland CLAY, Defendant-Appellant. Nos. 75-1100, 75-1102. United States Court of Appeals, Sixth Circuit. Aug. 28, 1975. Kay D. Schloff, F. Randall Karfonta, Detroit, Mich., for appellant Johnny King. Ralph B. Guy, Jr., U. S. Atty., Robert D. Sharp, Richard L. Delonis, Asst. U. S. Attys., Detroit, Mich., for appellee United States. Richard A. Rossman, F. Randall Kar-fonta, Kenneth R. Sasse, Detroit, Mich., for appellant Turley Smith. Richard M. Lustig, Southfield, Mich., for appellant Cleveland Clay. Before PECK, McCREE and ENGEL, Circuit Judges. PER CURIAM. Appellants Cleveland Clay, Turley Smith and Johnny King were indicted on August 27, 1973 by a federal grand jury sitting in the Eastern District of Michigan. The indictment charged appellants Smith and Clay on three counts: (1) unlawful possession with intent to distribute approximately 59.5 grams of heroin in violation of 21 U.S.C. § 841(a)(1); (2) unlawful sale and distribution and aiding and abetting in the sale and distribution of approximately 59.5 grams of heroin in violation of 21 U.S.C. § 841(a)(1); (3) unlawful conspiracy to distribute 1/8 kilogram of heroin in violation of 21 U.S.C. § 846. Appellant Johnny King was charged with the offenses alleged in counts two and three of the indictment, but was not charged with possession with intent to distribute heroin in count one. All three appellants waived trial by jury, and trial was held to the court on March 19, 1974. On March 21, 1974, the trial court found all defendants guilty on all counts. Cleveland Clay was sentenced to serve a term of eight years on each of the three counts with a special parole term of five years on the first count, three years on the second count, and five years on the third count, all of the sentences to run concurrently. Tur-ley Smith was sentenced to three years imprisonment plus a six year special parole term on each of the three counts, the sentences to run concurrently. Johnny King was sentenced to eighteen months imprisonment plus a special parole term of three years on each count, the sentences to run concurrently. The appeals of the three defendants were consolidated for hearing before this court. Appellants King and Smith both claim that they were deprived of their Fifth Amendment due process rights by the pre-arrest delay of approximately ten months before the government brought charges against them. We find this claim to be without merit. An examination of the record indicates the government had valid and legitimate reasons for the delay in arresting King and Smith, and that the prejudice caused them by the delay was minimal. We therefore, conclude that the delay in question caused no deprivation of either appellant’s constitutional rights. Lothridge v. United States, 441 F.2d 919 (6th Cir. 1971); United States v. Harris, 412 F.2d 471 (6th Cir. 1969). Appellant Clay’s sole claim on appeal is that the government, by furnishing him with an incomplete summary of statements by government agents before trial, in effect was guilty of withholding evidence useful and necessary to his defense within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and thus deprived him of his Fifth Amendment due process rights. Clay claims that had he known that the testimony of government agents would link him to the alleged offenses, he would not have waived his right to jury trial. This is not a case where the government intentionally withheld evidence which would have exonerated Clay. Cf. United States v. Young, 426 F.2d 93 (6th Cir. 1970). The statements furnished to appellant before trial were voluntarily disclosed at a time well prior to the time appellant was legally entitled thereto under the Jencks Act, 18 U.S.C. § 3500. There was no evidence that the government acted in bad faith in providing incomplete summaries, and appellant was not entitled to rely upon the fact that the statements could not be changed or supplemented at trial. We thus find this contention to be without merit. Finally, appellant Smith has contended that his convictions for possession with intent to distribute heroin and distribution of heroin, in violation of § 841(a)(1), cannot both stand because the former offense is lesser and included within the latter. Although appellant Clay has not raised this issue on appeal, we consider its applicability to his convictions on counts one and two as well, since neither the district court nor Clay had the benefit of our decision in United States v. Stevens, 521 F.2d 334, 1975. In Stevens, supra, we quoted with approval the language of United States v. Atkinson, 512 F.2d 1235 (4th Cir. 1975), that where possession of heroin is not shown to exist separately from the moment in which it is transferred to the government agent, but a single act is proof of the two offenses, it was not the intent of Congress that the defendant be punished twice for the single act. We thus remanded the case to the district court for vacation of one of the two sentences imposed for the violations of § 841(a)(1). This was so even though the sentences imposed for the separate violations were to run concurrently. Here it appears that as to appellant Smith there was no proof of possession separate from the act of transferring the heroin to the government agent. We thus remand the case to the district court for vacation of one of the two concurrent sentences imposed for his violation of § 841(a)(1). As to appellant Cleveland Clay, there was no direct evidence of either his possession or sale of the heroin in question. Both convictions were based, however, upon the circumstantial evidence of delivery by Clay of the heroin to his co-defendant Smith. Counts one and two charged Clay with possession and distribution of the same 59.5 grams of heroin, and there is no indication different acts formed the basis of the two convictions. In effect, the single transaction of delivery of the heroin by Clay to Smith formed the basis of both convictions. We thus remand the case to the district court for vacation of one of the two sentences imposed. Since the district judge imposed a longer special parole term in connection with Clay’s conviction on count one than that imposed on count two, he will be free to vacate either sentence in the exercise of his discretion. The judgment of conviction as to appellant King, No. 75 — 1100, is affirmed. The judgments of conviction as to appellants Smith and Clay, No. 75-1101 and No. 75-1102, are affirmed except as to sentences. These cases are remanded to the district court for the purpose of vacating one of the two concurrent sentences imposed upon defendants Clay and Smith on counts one and two. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. JACKSON WATER WORKS, INC., a California corporation, and Citizens Utilities Company, a Delaware corporation, Plaintiffs-Appellants, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, et al., Defendants-Appellees. No. 85-1667. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 11, 1985. Decided July 8, 1986. Pregerson, Circuit Judge, dissented and filed opinion. James M. Wagstaffe, Cooper, White & Cooper, San Francisco, Cal., for plaintiffs-appellants. Lawrence Q. Garcia, Public Utilities Comm., Richard J. Massa, Richard J. Massa & Associates, San Francisco, Cal., for defendants-appellees. Before SKOPIL, PREGERSON, and WIGGINS, Circuit Judges. SKOPIL, Circuit Judge: This is a challenge by a private utility to the constitutionality of a state statutory scheme which allows public condemnors the choice of adjudicating just compensation in either state court or before the Public Utility Commission. We agree with the district court that the statutes do not facially violate either equal protection or due process. We affirm. FACTS AND PROCEEDINGS BELOW Plaintiff-appellant Jackson Water Works (“JWW”) is an investor-owned public utility water system serving customers in and around Jackson, California. Plaintiff-appellant Citizens Utilities Company is JWW’s sole shareholder. Defendant-appel-lees are the City of Jackson and its various officers (“City”) and the California Public Utility Commission and its members (“PUC”). On April 10, 1984 the City, acting pursuant to Cal.Pub.Util.Code §§ 1403-04 (West 1975), declared its intention to acquire JWW through eminent domain by filing a petition with the PUC. The petition sought a determination by the PUC of the amount of just compensation to be paid by the City. Before such a determination could be made, JWW filed this action in federal district court seeking declaratory and injunc-tive relief. JWW contended that the administrative procedure offends equal protection because similarly situated utilities are subjected to just compensation determination at the City’s option in either state court or before the PUC. JWW further alleged that adjudication of just compensation by the PUC violates due process because it denies an impartial tribunal and meaningful appellate review. On cross-motions for summary judgment the district court granted the City’s motion. JWW timely appealed. Thereafter, the district court granted JWW’s motion for an injunction pending appeal that has prevented the PUC from proceeding with the just compensation determination. STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th Cir.), appeal dismissed and cert. denied, — U.S. -, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985). Summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to prevail as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985). There are no disputed facts in this case. Resolution therefore depends upon de novo examination of questions of law. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101 (1984). The district court’s interpretation and application of state law is entitled to no special deference; questions of state law are reviewed de novo. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). DISCUSSION A. Equal Protection. The equal protection clause of the fourteenth amendment commands that no state shall deny any person the equal protection of the laws. City of Cleburne v. Cleburne Living Center, — U.S. -, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). This requires that “all persons similarly circumstanced shall be treated alike.” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920)). JWW complains that equal protection is violated by arbitrary discrimination between identically situated public utility con-demnees. The alleged discrimination is the result of a statutory condemnation scheme which allows a city condemnor to unilaterally select the forum for the adjudication of just compensation. Significant procedural differences between the forums, JWW argues, give rise to the equal protection violation. 1. Statutory Scheme A California political subdivision which seeks to exercise its powers of eminent domain to acquire property must institute and conduct an action in the California Superior Court. Cal.Civ.Proc.Code §§ 1230.010-070 (West 1982). Both con-demnor and condemnee have the right to a jury determination of just compensation. Cal. Const, art. I, § 19. The condemnee may seek review of the court’s determination by an absolute right of appeal to the California Court of Appeals. Cal. Const, art. VI, § 11; Cal.Civ.Proc.Code § 904.1. A discretionary writ of review may be made to the California Supreme Court. Cal. Rules of Court, Rule 28. When the condemnee is a public utility, the political subdivision may elect the procedures provided by the California Public Utility Code. Cal.Pub.Util.Code §§ 1401-21. That statute provides that upon petition by the City, the PUC, acting in its judicial capacity, will conduct proceedings to determine just compensation. Id. at § 1411. The administrative procedure is commenced at the City’s option. It is an “alternative and cumulative and not exclusive” procedure for the determination of just compensation. Id. at § 1421. There are no juries. Review is by application for rehearing to the Commission and by writ of review to the California Supreme Court. Id. at § 1420. If the utility refuses to accept the compensation, the City is required to obtain an order of condemnation by commencing an action in Superior Court. Id. at § 1413. In such court proceedings the finding of the Commission fixing compensation are “final and shall not be subject to modification, alteration, reversal or review.” Id. at § 1416. 2. Level of Review In determining whether the statutory scheme violates equal protection, we must first determine the level of scrutiny to apply. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). JWW argues we must apply strict scrutiny because the state’s classifications impinges upon fundamental rights. The City contends that the district court correctly applied a rational basis standard. Traditionally, these two standards, strict scrutiny and rational basis, have been applied when state action is challenged on equal protection grounds. Hoffman v. United States, 767 F.2d 1431, 1434 (9th Cir.1985). Strict scrutiny is applied when the state’s classification is deemed to be made on “suspect” grounds such as race, ancestry, alienage, or categorizations impinging upon fundamental rights such as privacy, marriage, voting, travel, and freedom of association. Id. at 1434-35. When no suspect class is involved and no fundamental right is burdened, we are obligated to apply a rational basis test to determine the legitimacy of the state’s classifications. Olagues v. Russoniello, 770 F.2d 791, 802 (9th Cir.1985). JWW contends that the classification here impinges on its rights to just compensation, a right expressly protected by the fifth amendment. Such a right has not been deemed “fundamental” for purposes of applying strict scrutiny in an equal protection analysis. More important, as the district court reasoned, JWW does not contend that it is denied just compensation, but only complains of the process. Deficiencies in that process such as lack of a jury trial and limited appeal rights, JWW contends, call for at least heightened scrutiny. But while these alleged deficiencies may give rise to equal protection arguments, i.e., Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972) (right of appeal); Humphrey v. Cady, 405 U.S. 504, 512, 92 S.Ct. 1048, 1053, 31 L.Ed.2d 394 (1972) (jury), neither has been accorded heightened review. See Hoffman, 767 F.2d at 1435 (noting that intermediate review has been limited to gender and legitimacy classifications). We conclude that the district court properly chose to apply the rational basis standard. Where a regulation or statute affects only economic and not fundamental interests, the state is free to create any classification scheme that does not invidiously discriminate. Burlington Northern Railroad Co. v. Department of Public Service Regulation, 763 F.2d 1106, 1113 (9th Cir.1985). The proper test for judging the constitutionality of statutes regulating economic activity challenged on equal protection grounds is whether the legislation bears a rational relationship to a legitimate state interest. Id. at 1109; Jones v. Reagan, 748 F.2d 1331, 1337 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3505, 87 L.Ed.2d 636 (1985). “Because the classification at issue does not interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class, the proper standard for review is the rational basis test....” In re Lara, 731 F.2d 1455, 1460 (9th Cir.1984). 3. Rationality of the Statutory Scheme Application of the rational basis standard requires a two-step analysis. Hoffman, 767 F.2d at-1436 (citing Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 (1981)). First, we must determine whether the challenged legislation has a legitimate purpose. Id. Second, assuming a legitimate purpose, we' must decide whether the challenged classification promotes that purpose. Id. at 1436-37. There need not be a “tight fitting relationship” between the legislative goal and the result. Id. at 1437 n. 7. All that is needed to uphold the state’s classification scheme is to find that there are “plausible,” “arguable,” or “conceivable” reasons which may have been the basis for the distinction. Brandwein v. California Board of Osteopathic Examiners, 708 F.2d 1466, 1472 (9th Cir.1983) (citations omitted). “Whether these reasons in fact underlay the legislative action is ‘constitutionally irrelevant.’ ” Id. (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960)). The moving party carries the burden of proving unconstitutionality under a rationality review because statutes are presumed to be constitutional. Burlington Northern, 763 F.2d at 1109; see also Jones, 748 F.2d at 1338 (legislation is presumed to be rational). The California Supreme Court in reviewing the administrative option here concluded that when a city elects to petition the agency to determine just compensation “it simply avails itself of the privileges thereby granted to bring into operation the facilities, expert and technical, which the Commission has on hand in connection with the exercise of its regulatory powers.” East Bay Municipal Utility District v. Railroad Commission of California, 194 Cal. 603, 229 P. 949, 951 (1924) (referring to PUC’s predecessor agency, the Railroad Commission). It appears that the California legislature, in creating the dual forum system, expected that the particular expertise of the PUC would further the interests of justice and economy in some instances but not in others. Presumably, the larger, more complex adjudications would be handled by the PUC. See Marin Municipal Water District v. Marin Water and Power Co., 178 Cal. 308, 173 P. 469, 472 (1918) (“fact that public utilities are subject to constant regulation aftd examination by the [commission] may well have led the Legislature to conclude that the commission was best able to make a just and equitable appraisement of their property”). JWW apparently does not dispute that the legislature could reasonably have concluded that the PUC’s expertise is needed for just compensation determinations in all utility condemnations. See Marin Municipal Water District, 173 P. at 472 (upholding the utility and non-utility distinction against equal protection attack). The district court, in rejecting JWW’s equal protection claim, relied primarily on the conclusion that the procedural differences in the forums are insufficient to give rise to an ascertainable injury. Assuming that the differences in forums are constitutionally insubstantial, there is ample deci-sional support for the district court’s conclusion. In American Party of Texas v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974), the Court reasoned that an appellant claiming an equal protection violation bears the burden of demonstrating discrimination “of some substance.” The burden is not met by mere assertions that differences exist. A state is not guilty of invidious discrimination in “recognizing these differences and providing different routes.” Id. at 782 n. 13, 94 S.Ct. at 1306 n. 13. Similarly, in American Motorists Insurance Co. v. Starnes, 425 U.S. 637, 644-45, 96 S.Ct. 1800, 1804-05, 48 L.Ed.2d 263 (1976), the Court reasoned: [I]t is fundamental rights which the Fourteenth Amendment safeguards and not the mere forum which a State may see proper to designate for the enforcement and protection of such rights. Given therefore a condition where fundamental rights are equally protected and preserved, it is impossible to say that the rights which are thus protected and preserved have been denied because the State has deemed best to provide for a trial in one forum or another. It is not under any view the mere tribunal into which a person is authorized to proceed by a State which determines whether the equal protection of the law has been afforded, but whether in the tribunals which the State has provided equal laws prevail. (quoting Cincinnati Street R.R. Co. v. Snell, 193 U.S. 30, 36-37, 24 S.Ct. 319, 321-22, 48 L.Ed. 604 (1904)). Nevertheless, there is an argument that the procedural differences are not constitutionally insubstantial. JWW contends that the two forums do not apply the same substantive law because the Commission systematically relies on a methodology of valuation that tends to understate true valuation. The PUC has rejected, however, the possibility that it is entitled to utilize a different method of valuation than mandated by law. See East Yolo Community Services District, 1 Cal. PUC 2d 474, 476-77 (1979) (noting Commission’s adoption of method of valuation set by decisional law and later codified at Cal.Civ.Proc.Code § 1263.320). Moreover, in Community Redevelopment Agency v. Abrams, 15 Cal.3d 813, 543 P.2d 905, 126 Cal.Rptr. 473, 478 (1975), the California Supreme Court stated: The fact that the law provides two distinct methods for governmental acquisition of public utilities — proceedings before the commission ... and judicial eminent domain proceedings ... — does not, as defendant suggests, “create serious equal protection problems” due to differing substantive measures of recovery according to the method chosen. [I]t was the clear intent of the Legislature to create alternative methods of procedure, and that procedure authorized by the Public Utilities Code should not be held to be exclusive of the judicial method____ It is manifest that the measure of compensation vouchsafed a public utility by the Public Utility Code ... is also to be accorded it in proceedings under the Code of Civil Procedure. Id., 543 P.2d at 910-11 n. 6 (citations omitted; quotes and emphasis in original). JWW argues that the consequences of the City’s unilateral forum decision is more than procedural because the City’s choice of the agency eliminates the right to a jury and intermediate appellate review. In Lindsey v. Normet, 405 U.S. at 79, 92 S.Ct. at 877, the Supreme Court struck down an Oregon statute that required a double-bond from a certain class of appellants. The Court reasoned that when an appeal is afforded, it cannot be granted to some litigants and capriciously and arbitrarily denied to others. Id. at 77, 92 S.Ct. at 876. The Court found the requirement to be arbitrary because it did not satisfy any legitimate state purpose. Id. at 77-79, 92 S.Ct. at 876-77. In Humphrey v. Cady, 405 U.S. at 507-11, 92 S.Ct. at 1051-53, the Supreme Court examined petitioner’s contention that institutionalization under the state’s Sex Crimes Act is essentially equivalent to commitment for compulsory treatment under the state’s Mental Health Act. Petitioner argued that since the latter provided for a trial by jury, his commitment under the former without a right to a jury determination violated equal protection. The Court concluded that the claim merited remand for an evidentiary hearing since the equal protection claim appears “especially persuasive if it develops on remand that petitioner was deprived of a jury determination, or of other procedural protections, merely by the arbitrary decision of the State to seek his commitment under one statute rather than the others.” Id. at 512, 92 S.Ct. at 1053. Language in these cases offer JWW substantial support for its position. Nevertheless, they do not necessarily direct a conclusion that the legislative scheme here violates equal protection. First, the state is not obligated under the federal Constitution to provide either a right of appeal or a jury trial. See Lindsey, 405 U.S. at 77, 92 S.Ct. at 876 (if a full and fair trial on merits is provided, state need not provide appellate review); Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211, 217, 36 S.Ct. 595, 596, 60 L.Ed. 961 (1916) (seventh amendment not applicable to the states). Second, the Supreme Court has recognized that the creation of administrative remedies may properly eliminate rights that may have been available in the judicial forum. For example, in Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 460, 97 S.Ct. 1261, 1271, 51 L.Ed.2d 464 (1977), the Court concluded that the seventh amendment did not prevent Congress from creating rights and remedies by statute, committing their enforcement to a tribunal other than a court, and thereby eliminating fact-finding by a jury. The seventh amendment is no bar to the enforcement of new rights in a speedy and expert tribunal. Id. at 461, 97 S.Ct. at 1272. Most important, it is conceivable that the legislature rationally believed that cities would be in the best position to choose the appropriate forum. Although the legislature did not express criteria to govern the City’s choice, this does mean that the City selects the forum for the specific purpose of depriving the utility of a jury or review by the state court of appeals. The selection of the administrative forum also deprives the City of a jury determination and intermediate review. Presumably, the legislature believed that the City would exercise its discretion in an appropriate manner. We agree with the district court that the legislature could have rationally concluded that the public’s interest would be better served by allowing the City to select the forum. As the district court noted, “[wjhile the utility may only consider the narrow interests of its private investors, the municipality is responsible to the public interest in general.” We conclude that the legislation has a legitimate purpose and that the challenged classification reasonably supports that purpose. The forum selection results in no ascertainable injury since the same substantive law is applied. Further, the legislative decision to vest discretion in the public condemnor is a rational method of achieving the legislative purpose of directing a certain class of utility condemnation compensation decisions to the PUC. The state’s decision does not have to be perfect; there need only be plausible or conceivable reasons which may have been the basis for the distinction. Brandwein, 708 F.2d at 1472. “Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them.” Clements v. Fash-ing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2343, 73 L.Ed.2d 508 (1982). B. Due Process. The due process clause guarantees an aggrieved party the opportunity to present a case and have its merits fairly judged. Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982). “[S]ome form of hearing” is required before a person is deprived of a protected property interest. Id. (quoting Board of Regents v. Roth, 408 U.S. 564, 570-71 n. 8, 92 S.Ct. 2701, 2705-06 n. 8, 33 L.Ed.2d 548 (1972) (emphasis in original). JWW contends that just compensation determinations by the PUC violate procedural due process because (1) the Commission is biased in its reliance on an unfair valuation methodology; (2) the Commission unlawfully combines its legislative and judicial functions; and (3) there is no meaningful appellate review. 1. Bias Every party is entitled to an impartial tribunal. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980). JWW argues that the PUC is predisposed to using an original cost valuation method which tends to understate the true value of the utility. But, as we noted above, the PUC has adopted and applies the same valuation method used in Superior Court condemnation proceedings. See East Yolo Community, 1 Cal. PUC 2d at 476-77. There is no bias in favor of a methodology other than the methodology required by law. 2. Judicial Capacity JWW complains that the PUC acts in both a legislative capacity (rate setting) and a judicial capacity (just compensation). This dual capacity has been expressly upheld by the California Supreme Court. In Marin Municipal Water District, 173 P. at 472, the court acknowledged that fixing the amount payable as just compensation is a judicial question and that due process would be lacking if the state took property without a judicial determination of just compensation. Nevertheless, the court concluded that in a prior decision, Marin Water and Power Co. v. Railroad Commission, 171 Cal. 706, 154 P. 864 (1916), it was settled that the Commission’s authority to fix just compensation for utility property taken by eminent domains was derived from Art. 12, § 5 of the California Constitution as a judicial power. Marin Municipal Water District, 173 P. at 472. Thus, the Commission is empowered by the state constitution to act in both capacities. 3. Appellate Review JWW complains that Cal.Pub.Util. Code § 1416’s limitation of review is a denial of due process. When a full and fair adjudication on the merits is provided, due process does not require a state to provide appellate review. Lindsey, 405 U.S. at 77, 92 S.Ct. at 876. Further, we conclude that the review provided is sufficient to meet the requirements of procedural due process. While discretionary writs of review to the California Supreme Court are rarely granted, the denial of a writ of review by that court, even without opinion, is a decision on the merits entitled to res judicata effect. See Pacific Telephone & Telegraph Co. v. Public Utilities Commission, 600 F.2d 1309, 1316 (9th Cir.), cert. denied, 444 U.S. 920, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979). Additionally, the PUC adjudicates only how much compensation is justly owed to the utility. All other condemnation proceedings are reserved for the Superior Court with full intermediate appellate review. Cal.Civ.Proc.Code §§ 1230.050; 904.1. We acknowledge that review by discretionary writ may not provide all the advantages of review by the court of appeals. Nevertheless, the fact that the state need not provide any appellate review and that the review that is provided is on the merits is sufficient to uphold section 1416 against a due process attack. CONCLUSION Utility condemnees are not denied equal protection by a legislative scheme that permits the public condemnors the unilateral choice of adjudicating just compensation in either state court or before the PUC. The adjudicatory process before the PUC does not violate the utility’s right to procedural due process. AFFIRMED. . An intermediate level of scrutiny has been applied to gender-based classifications and categorizations involving legitimacy. Hoffman, 767 F.2d at 1435; see also Jones v. Reagan, 748 F.2d 1331, 1337 (9th Cir.1984) (describing intermediate level as “heightened” review), cert. denied, — U.S. -, 105 S.Ct. 3505, 87 L.Ed.2d 636 (1985). . The district court also relied in part on the general practice of allowing the prosecuting party the discretion to proceed in alternative forums. The court examined Georgia Power Co. v. 54.20 Acres of Land, 563 F.2d 1178 (5th Cir. 1977), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979), rev'd in part on other grounds, Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 936, 101 S.Ct. 1403, 67 L.Ed.2d 372 (1981). There the court reviewed a federal statute that permitted a utility licensee to exercise the power of eminent domain in either federal or state court. In dictum, the court stated that it found no equal protection violation by the plaintiffs choosing "between two or more causes of action with different consequences for defendants.” Id. at 1193; see also Sanders, 617 F.2d at 1122, n. 15 (no merit to argument that impermissible forum shopping and denial of equal protection may result from application of different standards of compensation when a licensee has the option of proceeding under state or federal powers of eminent domain). The district court's analogy is not perfect. The choice of actions created by the federal statute was between state court and federal court. JWW concedes that the equal protection clause does not apply when the dissimilar treatment involved is the result of differences between the laws not of one state, but of different sovereignties. A state’s creation of alternative forums may cause constitutional problems if arbitrary selection deprives a litigant of significant procedural protections. See Humphrey, 405 U.S. at 512, 92 S.Ct. at 1053. 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_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". Sumner G. WHITTIER, Administrator of Veterans Affairs, et al., Appellants, v. Herman L. R. EMMET, Jr., On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. James A. DEERING, On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. Robert H. MABBUTT et al., Suing for Themselves and all Persons Similarly Situated, Appellees. Nos. 15066-15068. United States Court of Appeals District of Columbia Circuit. Argued Nov. 19, 1959. Decided June 23, 1960. Petition for Rehearing en Banc Denied Sept. 16, 1960. See, also, 164 F.Supp. 563. Mr. Lionel Kestenbaum, Atty., Dept, of Justice, with whom Asst. Atty. Gen., George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept, of Justice, were on the brief, for appellants. Mr. John Geyer Tausig, Washington, D. C., with whom Messrs. Henry F. Butler and John T. Koehler, Washington, D. C., were on the brief, for appellees. Before Mr. Justice Burton, retired, and Washington and Danaher, Circuit Judges. Siting by designation pursuant to 28 U.S.C. § 294(a). Mr. Justice BURTON. Under Article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, the United States guaranteed the payment of premiums on limited amounts of commercial life insurance policies carried by servicemen. In 1942 the Act was amended to include, for the first time, an express provision that when such an insurance premium payment was made by the United States, it evidenced a debt due to the United States from the insured serviceman on whose account the payment was made. The amendments also provided that such debts to the United States were collectible either by their deduction from amounts due the insured servicemen from the United States or as otherwise authorized by law. The Administrator of Veterans’ Affairs interpreted Article IV of the 1940 Act, prior to the 1942 Amendments, as establishing by implication a comparable obligation on the part of the insured servicemen to reimburse the Government for its payment of the guaranteed premiums. Under this interpretation, the Administrator collected over $1,640,000 from approximately 8,400 insured servicemen. He did this in large part by offsetting against the debts of the respective servicemen the dividends due them in connection with their National Service Life Insurance policies. Although there was some acquiescence in the Administrator’s interpretation of the 1940 Act, there also was vigorous opposition to it. This resulted in conflicting judicial decisions culminating in 1957 in the Supreme Court’s decision, with three Justices dissenting, in United States v. Plesha, 352 U.S. 202, 77 S.Ct. 275, 1 L.Ed.2d 254. In that case the Supreme Court held that, contrary to the Administrator’s interpretation of the 1940 Act, prior to the 1942 Amendments, the insured servicemen were not obligated to reimburse the Government for its payment of premiums on their account. After the Plesha decision, the next problem was that of returning to the servicemen their funds which had been used erroneously by the Government to reimburse itself for its payment of the guaranteed premiums. To facilitate such refunding, Congress, in 1958, enacted Public Law 85-586. That Act authorized the Administrator of Veterans’ Affairs, upon timely application, to refund to the servicemen, without interest, all amounts collected from them by the United States under its erroneous interpretation of the 1940 Act. Public Law 85-586 made available the money to make such refunds and also provided that the right to such refunds was not to be denied by reason of statutory time limitations, judgments theretofore rendered, or “any other technical defense.” In the three cases now before us plaintiffs ask not only for the principal of the sums claimed, but also for interest on delayed dividends due them under their National Service Life Insurance policies. Furthermore, they ask for the allowance of attorneys’ fees to cover services rendered not only to the named parties to the litigation, but to all persons similarly situated. In No. 15066, the plaintiff, Emmet, sought a writ of mandamus from the District Court for the District of Columbia ordering the defendant officials to make the payments requested. In Nos. 15067 and 15068 the plaintiffs, Deering and Mabbutt, brought suit, respectively, in the District Court for the Southern District of New York and the District Court for the Northern District of California for the payment of their claims pursuant to the Tucker Act, and the National Service Life Insurance Act. Those courts transferred the cases to the District Court for the District of Columbia in reliance upon 28 U.S.C. § 1404(a). That court consolidated the cases and granted a preliminary injunction, which is still in effect, forbidding the disburse* ment of more than 90% of the respective payments authorized by Public Lav/ 85-586. It overruled all objections to its jurisdiction and to the propriety of taking action on the merits of the issues presented. After a plenary hearing it ordered payment by the Government not only of the amounts provided for in Public Law 85-586, but also of interest at 3% per annum on an amount equal to the value of the National Service Life Insurance dividends. It also authorized the payment of attorneys’ fees of 5% on the aggregate amount of principal and interest to be refunded under Public Law 85-586. The Government, on appeal, seeks a reversal of the judgment below on the ground that none of these actions should have been heard by the District Court for the District of Columbia. On the merits, the Government contends that neither the allowance for interest nor that for attorneys’ fees was justified. For the reasons hereafter stated, we agree with the Government. In No. 15066, originating in 1955 in the District Court for the District of Columbia, Emmet sought to litigate the question later resolved by the Supreme Court in United States v. Plesha, supra. He asked for a writ of mandamus directed against the Administrator of Veterans’ Affairs, the Secretary of the Treasury, the Treasurer of the United States and the Comptroller General. It is elemental, however, that this extraordinary remedy was not available for such purpose, inasmuch as the Tucker Act provided an adequate remedy at law to test the question. The pecuniary liability of the United States may be determined only through such procedures as the United States has authorized. Moreover, a writ of mandamus will be issued only to compel the performance of a ministerial duty as distinguished from one calling for exercise of discretion. In this case the amounts claimed had not yet been determined at the time the action was filed. While this case was pending, the decision in the Plesha case and the enactment of Public Law 85-586 settled the major legal issues. They did not, however, authorize an allowance for interest and another for attorneys’ fees as sought by the plaintiff. The way to reach those issues is not by writ of mandamus. Accordingly, the complaint in the Emmet case must be dismissed on jurisdictional grounds insofar as it applies to mandamus. Deering and Mabbutt sought relief comparable to that sought in the Emmet case but by a different procedure. They filed their complaints in the District Courts of their respective districts of residence. Each alleged that jurisdiction existed in those courts both under the Tucker Act and the National Service Life Insurance Act. On motions of plaintiffs those courts transferred both cases to the District Court for the District of Columbia under authority of 28 U.S.C. § 1404(a). The Government here contends that the complaints should have been dismissed or the cases re-transferred to permissible districts. Section 1404(a) limits transfers of such cases to those districts where the action might have been brought in the first instance. Such limitation excludes vende in this district under the Tucker Act, because by § 1402(a) venue under the Tucker Act is limited to the courts of the districts of the plaintiffs’ residence or to the Court of Claims. But plaintiffs also contend that venue lies in the District Court for the District of Columbia under the National Service Life Insurance Act of 1940. Under the jurisdictional provision of that Act, actions involving disagreements as to claims under National Service Life Insurance contracts may be brought either in the district of the plaintiff’s residence or in the District Court for the District of Columbia. That provision, however, does not apply to the instant cases because the complaints here seek to recover the collections erroneously made by the Government in reliance upon the Soldiers’ and Sailors’ Civil Relief Act of 1940, not the National Service Life Insurance - Act. The cases before us do not involve any disagreement about dividends under the Insurance Act. The Government admits the plaintiffs’ right to those dividends. It disbursed them from the Insurance Fund and credited plaintiffs’ accounts by •offsetting the erroneous claims of the Government under the Soldiers’ and Sailors’ Civil Relief Act. Even if these differences be treated as disagreements as to dividends, it still would be necessary to show here that this disagreement was one for an “insurance benefit” within the meaning of 38 U.S.C. § 784(h). Candell v. United States, 10 Cir., 1951, 189 F.2d 442, indicates that disputes over dividends do not so qualify. As was pointed out in Candell, insurance dividends are realized as a result of low mortality experience and economies in the operation of the insurance company. They are unrelated to the obligation to pay the particular policyholder for a loss insured against and are not the same sort of payment as an insurance benefit. Furthermore, the “disagreement” which is a prerequisite to a suit under the Insurance Act must include the filing of a claim or protest and a denial. That is absent here. United States v. Christensen, 10 Cir., 1953, 207 F.2d 757. After the court below had declined to dismiss these cases or to transfer them to other District Courts, it considered them on their merits and granted substantially the relief requested. On these appeals, the parties have argued the merits. Although we have concluded that the lower courts were in error in deciding that venue in Deering and Mabbutt lies in the District of Columbia, this does not preclude us from disposing of these cases on the merits. Section 1406(b) of the Judicial Code provides that deficiencies in venue shall not impair a District Court’s jurisdiction if objection to the deficiency is not timely and sufficient. Venue is primarily designed to protect defendants from inconvenient forums and courts from inconvenient lawsuits. Once the case has been heard fully and fairly on the merits, the reasons for reversing the judgment on grounds of improper venue are substantially diminished in the absence of prejudice to a- party who has preserved his standing to complain by timely objection. This factor distinguishes the cases before us from those where the decision of the District Court on the venue question was brought before the Court of Appeals by petition for mandamus or interlocutory appeal before a hearing on the merits. We proceed to a disposition of the instant cases on their merits because the erroneous determination of the venue questions below does not constitute reversible error as to any of the parties. These cases were transferred to this district on motions of the plaintiffs and their view of 'the venue questions prevailed below. Having invoked the transfer provisions of § 1404(a) themselves, and having failed to take a cross-appeal from the judgment below in their favor on the merits, they have waived their right to complain of the improper venue. Peoria & P. U. R. Co. v. United States, 1924, 263 U.S. 528, 44 S.Ct. 194, 68 L.Ed. 427. As for the Government, if it prevails on the merits, the erroneous determination of the venue amounts to harmless error. It would not make any significant difference from the Government’s point of view whether the cases were tried in New York and California, or in the District of Columbia. In fact, the Government has had the advantage of having to try only one proceeding and take appeals in one circuit rather than to' have had three trials and take appeals in three circuits. In this situation there is no basis for concluding that prejudice to the Government resulted from trial in an improper district. It would be an obviously questionable result if we should find for the Government on the merits, and yet order it to re-litigate the cases in other forums merely because improper venue had been imposed upon it over its timely objections. On the merits, the court below ordered the defendants to pay plaintiffs, inter-venors, and each veteran similarly situated, the amount the Administrator of Veterans’ Affairs had wrongfully applied to the reimbursement of the United States for premiums advanced by it on the serviceman’s commercial life insurance under the Civil Relief Act of 1940. The court below also ordered the payment of interest at 3% per annum on the amount so to be paid. An obvious reason for denying this allowance of interest is that Congress has made no provision for its payment. It is elemental that pre-judgment interest cannot be assessed against the Government in the absence of a specific provision authorizing such assessment. Furthermore, since all but the few named parties to these actions will receive payment of their claims solely under Public Law 85-586, rather than under the judgments rendered in these cases, the terms of such payments are to be determined by such statute. It expressly states that the payments authorized are "without interest.” There is no authority in the National Service Life Insurance Act for the allowance of interest claimed by the named plaintiffs in these actions. In fact, the Supreme Court has held that no interest was allowable under the World War I Insurance Act, which is substantially identical to the National Service Life Insurance Act, even in the extreme case of a wrongfully withheld death benefit. The court below also ordered the allowance of attorneys’ fees of 5% of the aggregate principal and interest which the court ordered paid under Public Law 85-586. These fees were to be applied first to reimbursement for legal expenses in certain named cases and the balance was to be divided among counsel named in the order. This allowance was not dependent upon statutory authority but rested upon the equity powers of a court to allow attorneys’ fees in exceptional cases and for dominating reasons of justice. Sprague v. Ticonic Nat. Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. The nature and extent of the legal services performed control the allowance rather than any formal, relationship between client and attorney. The decision in the Plesha case authoritatively established the rights of the claimants and in that sense was a necessary precondition to the payment of any refunds to the veteran claimants. This decision, however, was merely an application of law which was available to other litigants under the doctrine of stare decisis. One who is influential in litigation leading to the announcement of a rule of law does not thereby gain a right to compensation from all those who later benefit from the application of the rule. Nor did the Plesha decision create such a distinct fund for the benefit of the class of claimants either by way of stare decisis or otherwise. It merely decided the claims of a few veterans out of about 8,400 who had claims involving a common question of law. Many of those claims would have been defeated by technical defenses, statutes of limitation, voluntary payments, or res judicata, except for the waiver of such defenses by Congress as set forth in Public Law 85-586. In that Act, Congress made available the Civil Relief Fund and other funds for reimbursement of the veterans entitled to it. From the small number of claimants who have joined these actions during the four years since the litigation was commenced, it is probable that few will join before judgment. Of the nine present intervenors, only two were not parties to one of the class suits or to Plesha. New more, if any, are likely to join now in view of Public Law 85-586. The saving of so few, out of about 8,400 claimants, from the operation of the statute of limitations is not an adequate reason for imposing attorneys’ fees upon all 8,400 litigants. Appellees’ ultimate position is that they are entitled to attorneys’ fees because Congress was moved by this litigation to pass an Act assisting these claimants. The class Congress favored is broader than that covered by the Plesha decision. The assertion of a noncontractual claim for compensation for services rendered in sponsoring favorable legislation does not deserve prolonged discussion. The judgments of the District Court are reversed and the cases are remanded to it with directions that the complaint in No. 15066 be dismissed and that the complaints in Nos. 15067 and 15068 be dismissed unless the appellees move for a transfer to courts having jurisdiction over the actions for further proceedings not inconsistent with this opinion. Reversed and remanded. . 54 Stat. 1183-1186, 50 U.S.C.A.Appendix, §§ 540-554. . 56 Stat. 775, 50 U.S.C.A.Appendix, § 546. . Collected by offset against National Service Life Insurance dividends ........... $ 960,000 Insurance dividends ...... 65,000 By offset against disability compensation .......... 22,000 Cash payments in response to demands by letters . .. 600,000 As a result of final judgments ................. 2,000 $1,649,000 . Veteran required to reimburse the United States for its payment of guaranteed premiums. United States v. Hendler, 10 Cir., 1955, 225 F.2d 106; Morton v. United States, D.C.N.D.N.Y. 1953, 113 F.Supp. 496; United States v. Nichols, D.C.N.D.Iowa 1952, 105 F.Supp. 543. Veteran not required to reimburse the United States for such payments. Plesha v. United States, 9 Cir., 1955, 227 F.2d 624 reversing D.C.N.D. Cal.1953, 123 F.Supp. 593; Hormel v. United States, D.C.S.D.N.Y.1954, 123 F.Supp. 806. . “Be it enacted by the Senate and Biouse of Representatives of the United States of America in Congress assembled, That the Administrator of Veterans’ Affairs is hereby authorized to make refunds, without interest, which are due on account of amounts collected by the United States Government by offset or otherwise from persons who made valid application for and were legally entitled to the protection of article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as it existed prior to the amendments of October 6, 1942. No refund shall be made pursuant to this Act unless application therefor is made to the Veterans’ Administration, within two years after the date of enactment of this Act and refund hereunder shall not be denied by reason of any other statutory time limitations, judgments heretofore rendered, or any other technical defense. “Sec. 2. The Soldiers’ and Sailors’ Civil Relief Fund may be used by the Veterans’ Administration for making refunds pursuant to this Act and there is hereby authorized to be appropriated such additional sums as may be necessary to carry out the purposes of this Act.” Public Law 85-586, 72 Stat. 487-488, 50 U.S.C.A.Appendix, § 540 note. . See 28 U.S.C. § 1346(a) (2) and § 1402 (a). . 38 U.S.C. § 784. . “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” . The interest was to be computed from the date that the dividends were withdrawn from the National Service Life Insurance Fund to the date on which they were paid to the servicemen entitled to them. . United States ex rel. Girard Trust Co. v. Helvering, 1937, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272; 28 U.S.C. §§ 1346, 1491 et seq.; see Plesha v. United States, 9 Cir., 1955, 227 F.2d 624. . See Reeside v. Walker, 1851, 11 How. 272, 13 L.Ed. 693. The Code vests extensive unreviewable discretion in the Administrator to determine matters of law and fact in this area. See 38 U.S.C. §§ 785, 211. . See note 8, supra. . § 784. Suits on insurance. “(a) In the event of disagreement as to claim, including claim for refund of premiums, under contract of National Service Life Insurance, United States Government life insurance, or yearly renewable term insurance between the Veterans’ Administration and any person or persons claiming thereunder an action on the claim may he brought against the United States either in the United States District Court for the District of Columbia or in the district court of the United States in and for the district in which such person or any one of them resides, and jurisdiction is conferred upon such courts to hear and determine all such controversies. * * * The courts of appeals for the several circuits, including the District of Columbia, shall respectively exercise appellate jurisdiction and, except as provided in section 1254 of title 28, the decrees of such courts of appeals shall be final. # * * * * “(h) The term ‘claim’ as used in this section means any writing which uses words showing an intention to claim insurance benefits; and the term ‘disagreement’ means a denial of the claim, after consideration on its merits, by the Administrator or any employee or organizational unit of the Veterans’ Administration heretofore or hereafter designated therefor by the Administrator.” 38 U.S.C. § 784. Before Title 38 was enacted into positive law in 1958, the provisions of this section were contained in 38 U.S.C. (1952 ed.) §§ 445, 817. . See note 13, supra. . “(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.” 28 U.S.C. § 1406(b). Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 340, 74 S.Ct. 83, 98 L.Ed. 39; Bankers Life & Cas. Co. v. Holland, 1953, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106; Polizzi v. Cowles Magazines, Inc., 1953, 345 U.S. 663, 665, 672, 73 S.Ct. 900, 97 L.Ed. 1331; Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167; Commercial Casualty Insurance Co. v. Consolidated Stone Co., 1929, 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252. . See 28 U.S.C. § 2111; Fed.Rules Civ.Proc., 61, 28 U.S.C. Cf. Bankers Life & Cas. Co. v. Holland, supra, 346 U.S. at page 382, 74 S.Ct. at page 147; Paramount Pictures, Inc. v. Rodney, 3 Cir., 1950, 186 F.2d 111; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766, 768; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, 330; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866, 869. Before the adoption of the Federal Rules of Civil Procedure, a defendant was required to raise his venue point by special appearance and motion to quash before he pleaded to the merits or he would be deemed to have waived his defense. See e. g., Commercial Casualty Insurance Co. v. Consolidated Stone Co., supra. Venue questions, therefore, did not arise in the federal courts on appeal after an adjudication on the merits. Rule 12(b) of the Federal Rules of Civil Procedure abolished the special appearance and permitted an attack on the venue of the court to be pleaded by motion or in the answer along with the other defenses going to the merits. While we have not found any reported federal decisions since the adoption of the federal rules considering a venue contention on appeal after trial on the merits and coming to the conclusion that the error was harmless, a number of state courts have reached this decision in analogous circumstances. See e. g., Straus Bros. Co. v. Fisher, 1928, 200 Ind. 307, 163 N.E. 225; City of Georgetown v. Cantrill, 1914, 158 Ky. 378, 164 S.W. 929; Hayes v. Oertel, La.App. 1940, 195 So. 388; Sanders v. Atlantic Coast Line R. Co., 1920, 114 S.C. 164, 103 S.E. 564; Oldham v. Reiley, 1921, 44 S.Dak. 428, 184 N.W. 250; Woodson Independent School Dist. v. State ex rel. Cox, Tex.Civ.App.1939, 130 S.W.2d 1038; Ramirez v. Sanchez, Tex.Civ.App.1936, 97 S.W.2d 1034; Peters v. Allen, Tex.Civ.App.1927, 296 S.W. 929; Floor v. Mitchell, 1935, 86 Utah 203, 41 P.2d 281; Kalb v. Luce, 1941, 239 Wis. 256,1 N.W.2d 176. . See e. g., Continental Grain Co. v. Federal Barge Lines, Inc., 5 Cir., 1959, 268 F.2d 240, certiorari granted 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59; Behimer v. Sullivan, 7 Cir., 1958, 261 F.2d 467, certiorari granted 361 U.S. 809, 80 S.Ct. 50, 4 L.Ed.2d 58; Blaski v. Hoffman, 7 Cir., 1958, 260 F.2d 317, certiorari granted 359 U.S. 904, 79 S.Ct. 583, 3 L.Ed.2d 570; In re Josephson, 1 Cir., 1954, 218 F.2d 174; All States Freight, Inc. v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 1952, 194 F.2d 410, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695; Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Paramount Pictures, Inc. v. Rodney, supra; Atlantic Coast Line R. Co. v. Davis, supra; Ford Motor Co. v. Ryan, supra; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra. . 28 U.S.C. §§ 2411, 2516. See United States v. New York Rayon Importing Co., 1947, 329 U.S. 654, 67 S.Ct. 601, 91 L.Ed. 577; United States v. Thayer West Point Hotel Co., 1947, 329 U.S. 585. 67 S.Ct. 398. 91 L.Ed. 521. . United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387; United States v. Worley, 1930, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887. Question: 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_origin	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LONGHORN TRANSFER SERVICE, INC., Respondent. No. 21347. United States Court of Appeals Fifth Circuit. June 15, 1965. Warren M. Davidson, Atty., N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Arnold Ordman, Gen. Counsel, Leo N. McGuire, Atty., N. L. R. B., Washington, D. C., for petitioner. James J. Loeffier, Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for respondent. Before HUTCHESON, BROWN and GEWIN, Circuit Judges. HUTCHESON, Circuit Judge. This is a proceeding to enforce an order of the National Labcr Relations Board pursuant to Sec. 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(e). The Board found that respondent violated Section 8(a) (1) of the Act by coercively interrogating its employees concerning their union activities, by refusing to give a promised wage increase because the employees had joined the union, by threatening reprisals, including discharge against union adherents, and by enlisting the aid of employees to work against the union and for the company. The Board also found that, respondent violated Section 8(a) (3) of the Act by discriminatorily discharging union leader McCardell at the height of the union campaign. It adopted the findings, conclusions and recommended order of the Trial Examiner. 144 NLRB No. 91. The Board’s order requires respondent to cease and desist from the unfair labor practices found, to reinstate McCardell with back pay, and to post an appropriate notice. Employee McCardell apparently spearheaded the drive to bring the union into respondent’s business. He contacted its business agent initially and got thirteen other employees to sign union authorization cards, after which they named him their chief spokesman. Following the initial union meeting a telegram was sent to company president Hahn, asserting the union’s representation of a majority of the company’s twenty-five employees and listing the names of the fourteen men who had signed union authorization cards. McCardell’s name headed the list. Hahn received the telegram the night of October 11, 1962. The charged activities began the next day. According to credited testimony Hahn called employee Patrick to his office, told him that he had seen his name on the telegram and that he could help Patrick but that the union could not. Two days later, in the company warehouse Hahn asked employee Leslie about the union and who its instigator was. He asked employee Davidson what he was griping about and insisted that he state his complaints to Hahn, A couple of days later he again spoke to Leslie and asked him to talk to the other employees about forgetting the union. A few days later he inquired as to whether Leslie had talked to them and upon being told that he had not, retorted that “One of these days you fellows might be sorry”. On November 2, when Leslie, McCardell and one Denkins went to Hahn’s office for their paychecks, Hahn said, “Well, you guys know that you got this union roused up”, and threatened, in effect, that there would be some discharges, ending with the statement, “and you know who it’s going to be”. After the representation election was held, Hahn announced the results to a group of his employees saying, “The Union won 14 to 11. But that don’t mean that you’ll tromp on me”. Then, according to credited testimony, he asked employee Davidson about an incident with his truck and, after his reply, called him a liar. He then told the dispatcher to watch Davidson and to tell Hahn everything he did because Davidson would be be the first s.o.b. he’d fire. In November 1961, Hahn had promised the men two pay raises, one to become effective in February 1962, and the second in November, 1962. The employees received the first raise, but not the second. According to credited testimony Hahn told Leslie and employee Patrick that he couldn’t give the second raise “on account of the Union — if it hadn’t been for the Union, you’d get your other raise”. Union leader McCardell had been employed by respondent for three years at the time he was discharged. During this period he had been involved in several incidents including damage to his truck, loss of goods, and personal injuries to himself. He apparently had never been formally reprimanded in writing for any of these occurrences. On October 8, McCardell’s parked truck rolled down an incline and struck a building doing $200 damage. On October 17, nine days after the accident and six days after the union’s telegram listing McCardell as one of its adherents had been received, Hahn called McCardell to his office and reprimanded him for a number of past incidents, including the building damage, and warned him that if he had another accident he would be discharged. He placed a record of reprimand in McCardell’s personnel file containing the notation, “Final warning, next incident will be discharged”. On November 9, McCardell violated a company rule by leaving his truck parked down the street from the company office instead of in its assigned parking place, and by leaving the keys and a tarp in it when he had completed work for the day. On learning of McCardell’s action, Hahn said, “He think[s] cause he gc’. the Union going on he can do anything he wants to, but I’ve got news for him”. On the next working day, McCardell was discharged. Our duty is to determine whether there is'substantial evidence on the record as a whole to support the Board’s findings that respondent violated Section 8(a) (1) and Section 8(a) (3) of the Act. E. g., Schwob Mfg. Co. v. N. L. R. B., 297 F.2d 864 (5th Cir. 1962). The record is replete with the conflicting testimony, faulty memories, and general disagreement about what was said, common to such cases. We, however, are not the fact-finder whose function it is to accept or reject, credit or discredit, conflicting versions of factual events and the inferences to be drawn from them. N. L. R. B. v. McGahey, 233 F.2d 406 (5th Cir. 1956). That is the function of the Trial Examiner and the Board, and on the facts as they found them, we have no doubt that respondent’s activities constituted a violation of Section 8(a) (1) of the Act. N. L. R. B. v. Collins & Aikman Corp., 338 F.2d 743 (5th Cir. 1964); N. L. R. B. v. Moore Dry Kiln Co., 320 F.2d 30 (5th Cir. 1963); Ken-Lee, Inc. v. N. L. R. B., 311 F.2d 608 (5th Cir. 1962); N. L. R. B. v. Griggs Equipment, Inc., 307 F.2d 275 (5th Cir. 1962). We do think that it is probable that respondent’s failure to grant the second pay increase was due to economic difficulties of the company at the time, rather than to anti-union animus, but this is not controlling if, as the credited testimony shows, Hahn told the employees that the union was the reason it was not granted. It is enough that the statement was in fact made, without regard to whether or not the explained reason was the real reason the raise was not forthcoming. These statements themselves “established without doubt that both in form and purpose their effect was to discourage and frustrate the statutory right of the employees freely to organize and bargain collectively.” N. L. R. B. v. Ferguson, 257 F.2d 88, 90 (5th Cir. 1958). As to the 8(a) (3) charge, the evidence although more equivocal, meets the test of substantial evidence to support the Board’s finding. Respondent strongly urges that it had just cause to discharge McCardell for his violation of the company rule concerning disposition of his truck upon completion of the day’s work, and that this violation was the reason for his discharge. It is, of course, true that “ [management can discharge for good cause, or bad cause, or no cause at all”, without violating the Act, N. L. R. B. v. McGahey, 233 F.2d 406, 413 (5th Cir. 1956), but if the discharge is because of union activity, a violation occurs. Certainly union activity or membership confers no immunity against discharge, N. L. R. B. v. Dell, 283 F.2d 733, 736 (5th Cir. 1960), but if the discharge was because of union activity it violates 8(a) (3). Ken-Lee, Inc. v. N. L. R. B., 311 F.2d 608, 611 (5th Cir. 1962). It is always difficult to determine the motive of management in discharging an employee where there appear to be two possible reasons for discharging him, one legal, the other illegal. MeCardell’s violation of the company rule provided ample reason for his discharge. It is also clear that his discharge could constitute an effective weapon against the union, since it occurred during the height of the organizational campaign in which he played a key role. Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort. We have repeatedly held that “if the discharge is because of union activity it is a violation of the Act even though a valid ground for dismissal might exist.” E. g., N. L. R. B. v. Linda Jo Shoe Co., 307 F.2d 355, 357 (5th Cir. 1962). The evidence clearly points to the conclusion that McCardell was discharged for his union activity. He had been involved in several incidents, but never formally reprimanded until the one in which his truck rolled down an incline damaging a building. He was not reprimanded for that incident until nine days after it occurred, and significantly, six days following the receipt by company president Hahn of the telegram listing the union adherents with McCardell’s name at the top of the list. Upon learning of the company rule violation which allegedly precipitated the discharge, Hahn said, “He think [s] cause he got the union going on he can do anything he wants to, but I got news for him”. The next working day McCardell was discharged. Hahn’s anti-union animus is clearly established, as is the fact that he knew of McCardell’s support for the union. There had been previous threats that someone would be discharged and McCardell was. A consideration of the entire record provides sufficient evidence of discriminatory motivation to support the Board’s finding that the discharge violated Section 8(a) (3). As we have repeatedly held, where “there are two grounds for discharge, one proper and the other unlawful, and the evidence as a whole would make the inferences as to which was the motivating cause reasonably equal, the conclusion reached by the Board should be sustained.” N. L. R. B. v. Hudson Pulp & Paper Corp., 273 F.2d 660, 666 (5th Cir. 1960); N. L. R. B. v. The Newton Co., 236 F.2d 438, 445 (5th Cir. 1956); N. L. R. B. v. Fox Mfg. Co., 238 F.2d 211, 215 (5th Cir. 1956). On the evidence in this record, the Board’s finding certainly must be sustained. We find the respondent’s additional contentions that it was denied due process of law because of bias on the part of the Trial Examiner, erroneous findings and credibility determinations, and evidentiary rulings, without merit. The order of the Board is hereby enforced. . General Drivers, Warehousemen and Helpers Local Union No. 968 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 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_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. VILES v. PRUDENTIAL INS. CO. OF AMERICA. No. 1918. Circuit Court of Appeals, Tenth Circuit. Nov. 8, 1939. Rehearing Denied Nov. 22, 1939. Writ of Certiorari Denied Jan. 15, 1940. See 308 U.S. -, 60 S.Ct. 387, 84 L.Ed. -. Edmond L. Viles, pro se. Horace Phelps, of Denver, Colo. (James D. Benedict and Horace F. Phelps, both of Denver, Colo., on the brief), for appellee. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. PHILLIPS, Circuit Judge. On June 10, 1927, the Prudential Insurance Company issued to Edmond L. Viles its policy of life insurance for $10,-000. The policy also insured Viles against total and permanent disability. Viles paid three semiannual premiums which, with the grace period, kept the policy in force until January 10, 1929. On November 25, 1936, Viles filed a suit in the district court of Jefferson County, Colorado, for specific performance of that portion of the policy relating to disability benefits. The suit was removed to the United States District Court for the District of Colorado. On an appeal from an order sustaining the Insurance Company’s demurrer to the complaint and dismissing the suit, the cause was reversed and remanded with instructions to reinstate the complaint, overrule the demurrer, and grant Viles leave to file an amended complaint wherein he might plead, in addition to other essential allegations, the facts with reference to proof of disability, the time of making same, and the reason for the delay. See Viles v. Prudential Insurance Company, 10 Cir., 96 F.2d 3. Thereafter, Viles filed an amended complaint wherein he alleged that during the month of October, 1928, he became totally and permanently disabled because of the loss of sight in both eyes; that during the grace period he called on the Insurance Company’s general agent at Denver, Colorado, explained his disability and requested blank forms for the purpose of furnishing written proof of such disability; that the general agent advised him the Insurance Company would not consider a claim for disability benefits until he had become totally blind or otherwise helpless; that he relied upon the statement of the general agent and did not discover he had been misled until March, 1935; that after such discovery he again called upon the Insurance Company’s general agent and applied for disability benefits and was given blank forms; that such forms were executed by Viles and his physician and delivered to the general agent on April 5, 1935; that thereafter he was advised by the Insurance Company it had investigated his claim and found his disability, if any, did not occur while the policy was in force. The Insurance Cdmpany, in its answer, alleged that the policy lapsed for nonpayment of premiums on January 10, 1929, and that Viles did not become totally and permanently disabled prior thereto. It denied that Viles called on its general agent at Denver during the grace period for the purpose of making proof of disability. It admitted that on March 25, 1935, Viles called on its general agent and.on April 5, 1935, delivered to such agent forms executed by Viles and his physician in which total and permanent disability was claimed. It also pleaded unreasonable delay in making proof of claim, laches, and the statute of limitations. The trial court specially found that Viles did not prior to January 10, 1929, nor at any time subsequent to June 10, 1927, nor at any time while the policy was in force, become totally and permanently disabled within the meaning and provisions of the policy; that the policy lapsed on January 10, 1929, and subsequent thereto Viles during the years 1929, 1930, and 1931 was able to and did follow gainful occupations for which he received substantial compensation in money; that no claim, notice, or proof of disability was furnished to the Insurance Company until on or about April 5, 1935; that no conversation occurred between Viles and the Insurance Company’s general agent in December, 1928, or January, 1929; and that the delay in making and furnishing proof of the alleged disability was unreasonable under the facts and circumstances and did not comply with the provisions of the policy requiring the filing of proof of disability within a reasonable time. A judgment was entered dismissing the suit. The trial court overruled a motion for a new trial, based on alleged newly discovered evidence, on the ground that the alleged newly discovered evidence was cumulative. Viles has appealed. Doctor Donald O’Rourke, an expert witness for Viles, testified that he made an examination of Viles’ eyes on April 16, 1929, and found his vision in the right eye was one-tenth for distance and in the left eye, perception of light; that the condition he found was in the back of his eyes and was a congenital defect which had existed since birth; that he examined Viles on April 5, 1935, for the purpose of executing the proof of disability filed with the Insurance Company, and a few months prior to the trial in connection with an application for a blind benefit from the state of Colorado, and his findings were the same as those in 1929. While being examined by Viles on direct examination he stated: “I am not familiar with the rulings of the court, but it strikes me here this morning that with vision of one tenth as recorded, it would not be possible for you to stand up and read as I have seen you do here.” Viles stated that he was not reading, but was just looking. On cross-examination, Doctor O’Rourke stated that the defeet he found in Viles’ eyes was congenital, was not progressive, and, in his opinion, had never changed. He further stated that in making an examination of eyes for the purpose of determining defects in vision, in order to obtain accurate results cooperation of the patient is necessary and the doctor must rely very largely upon what the patient states he can see. Viles testified that prior to the fall of 1928, he represented several large concerns and sold hosiery, lingerie, and other dry goods to retail merchants and department stores and earned from $5,000 to $7,200 a year; that his vision had always been impaired; that glasses largely corrected the defect until the fall of 1928, when his vision became greatly impaired; that he called at the Denver office of the Insurance Company and talked to its general agent; that the general agent advised him he would not be entitled to disability benefits until he-was totally blind or otherwise helpless; that he believed the agent knew the law and the facts, and forgot all about the policy until early in 1935, when he learned that a man, who had better vision than he, was drawing disability benefits from a life insurance company; that he again called on the general agent of the Insurance Company and insisted on blanks for proof of loss which were subsequently filled out and filed. On cross-examination Viles admitted that he signed and swore to a complaint against the Richmond 'Hosiery Mills in which he claimed damages in the sum of $9,000 for the cancellation of an employment contract running from April 1, 1924, to September 1, 1929; that he entered into a contract to act as salesman for the Mills Novelty Company of Chicago on March 31, 1930, and verified a complaint against that company, which contained the following: “On or about March 31, 1930, the defendant employed the plaintiff to sell its goods on commission and under such contract of employment the plaintiff earned and there is now due him as such commission, the sum of $3,294.82”; that he and his wife ran the Mode Art Hosiery & Corset Shop, Inc., from about June, 1928, until it was adjudicated a bankrupt on June 27, 1930; and that he filed a claim in the bankruptcy proceeding for salary from November 1, 1927, to February 1, 1930, for $150 per month. In the claim he credited payments aggregating $3,109.08, and asserted a balance due of $940.92. Viles testified that he was employed as a salesman in California in 1931 and earned $750 during the first three months of that year; that thereafter he filed certain civil actions for damages. He admitted that in the civil actions, he filed certain verified papers wherein he swore that due to the wrongful acts of the defendants in such actions he lost a $10,000 position in California. In an application for an operator’s license to drive an automobile made on August 17, 1932, he made a negative answer to the following question: “Have you any physical defect which would prevent you from properly operating a motor vehicle ?” In an application for the position of warden of the state penitentiary filed with the Civil Service Commission of Colorado on or about December 12, 1932, he stated he had no physical or mental defect that would prevent him from holding such position except astigmatism. In an application for reinstatement of a policy of life insurance with the Equitable Life Assurance Society on October 9, 1929, he made a negative answer to the following question : “Have you, on account of your health, ever left your work for more than one month or changed your occupation or dwelling, or traveled ?” He drove his automobile from Golden, Colorado, to Denver, a distance of some 12 to 15 miles, the morning of the trial. Glen A. McTaggart, a witness for the Insurance Company, testified that he was general agent for the Insurance Company in Denver and had been since October 29, 1928; that Viles did not call on him during December, 1928, or January, 1929, and that he first saw Viles in the spring of 1935. Witnesses for the Insurance Company testified that after January, 1929, Viles walked about the streets of Denver, dodged in and out of traffic, drove an automobile, examined transcripts of testimony in the office of the United States Attorney and appeared to be reading same without the aid of a reading glass, and frequently visited the state district court law library where he found and took down law books from the shelves and appeared to be reading them without the aid of a reading glass. Viles, on rebuttal, testified that he could not read without a reading glass; that he was self-conscious and undertook to make it appear he was seeing when he really could not see and that he only drove his car in emergencies. Where a chancellor has considered conflicting evidence and has made his findings and decree thereon, they must be regarded as presumptively correct, and unless a serious mistake has been made in the consideration of the evidence, or an obvious error has intervened in the application of the law, the decree should be permitted to stand. Here, the evidence, while conflicting, clearly sustains the finding that Viles did not become totally and permanently disabled through the loss of eyesight while the policy was in force. Viles asserts that the Insurance Company denied liability in June, 1935, on the sole ground that his alleged disability did not occur while the policy was in full force and effect and that this constituted a waiver of all other defenses. On April 18, 1935, the Insurance Company wrote Viles that it had received his application for disability benefits, stated that according to its records the policy had been cancelled for nonpayment of the premium due December 10, 1928, and further stated: “However, we are willing to look into the matter to determine whether there is any basis for extending favorable consideration to the claim. It is to be especially understood that by inquiring into the facts of the case the Company is not waiving any of its rights or defenses under the policy.” Hence, it may be doubted that by denying liability on the ground the alleged disability did not occur while the policy was in force and effect, the Insurance Company waived other defenses. Moreover, failure to file proofs of loss in accordance with the terms of the policy within a reasonable time after the alleged disability arose was not an affirmative defense. It was incumbent on Viles to allege and prove as a part of his case that he filed such proofs within a reasonable time. The proof sustained the finding that the proofs of loss were not filed within a reasonable time. Viles further contends that the trial court erred in overruling his motion for a new trial. A motion for a new trial is addressed to the discretion of the trial court, and its ruling thereon is not open to review in the absence of a showing of abuse of discretion. The affidavits and exhibits attached to the motion showed the alleged newly discovered evidence was' cumulative. Hence, the trial court did not abuse its discretion in denying the motion for a new trial. The judgment is affirmed. Hereinafter referred to as the Insurance Company. Stearns v. Central Petroleum Co., 10 Cir., 93 F.2d 638, 641; Whitchurch v. Crawford, 10 Cir., 92 F.2d 249, 254; Standard Oil Co. of Colo. v. Standard Oil Co., 10 Cir., 72 F.2d 524, 527; Stewart v. American Life Ins. Co., 10 Cir., 89 F.2d 743, 747. Metropolitan Casualty Ins. Co. v. Johnston, 3 Cir., 247 F. 65, 69, 7 A.L.R. 175; Peters v. Mutual Life Ins. Co., 3 Cir., 92 F.2d 301; Friedman v. Orient Ins. Co., 278 Mass. 596, 180 N.E. 617, 618; New York Life Ins. Co. v. Sinquefield, 231 Ala. 185, 163 So. 812, 813. Century Indemnity Co. v. Shakespeare, 10 Cir., 74 F.2d 392, 394; Emporia Loan & Inv. Co. v. Rees, 10 Cir., 66 F.2d 225. Mutual Life Ins. Co. v. Treadwell, 5 Cir., 79 F.2d 487, 489; Payton v. Ideal Jewelry Mfg. Co., 1 Cir., 7 F.2d 113, 114; Shelton v. Southern Ry. Co., D.C.Tenn., 255 F. 182, 183; Flannelly v. Delaware & H. Co., C.C.Pa., 165 F. 350; Wright v. Southern Exp. Co., C.C.Tenn., 80 F. 85, 89; Flint & P. M. R. Co. v. Marine Ins. Co., C.C.Mich., 71 F. 210, 221. 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_7-2	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". Robert K. MAYO, H. E. Harper and Jack C. Murrell, as Trustees in Bankruptcy of Twin City Construction Company, Inc., Bankruptcy, Appellants, v. PIONEER BANK & TRUST COMPANY, Appellee. No. 17540. United States Court of Appeals Fifth Circuit. Sept. 30, 1959. Cleve Burton, Richard H. Switzer, W. V. Lunn, John A. Carstarphen, Jr., Shreveport, La. (Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, La., of counsel), for appellants. Paul M. Hebert, Baton Rouge, La., Turner B. Morgan, Shreveport, La. (Morgan, Baker, Skeels, Middleton & Coleman, Shreveport, La., Breazeale, Sachse, Wilson & Hebert, Baton Rouge, La., of counsel), for appellee. Before JONES, BROWN and WISDOM, Circuit Judges. WISDOM, Circuit Judge. The Trustees in Bankruptcy of Twin City Construction Company, a Louisiana corporation, sued The Pioneer Bank and Trust Company of Shreveport, Louisiana, to recover $69,145. The Trustees contend that, under Sections 60, sub. b and 67, sub. d of the Bankruptcy Act, 11 U.S.C.A. §§ 96, sub. b, 107, sub. d, the bankrupt corporation made certain voidable transfers to the bank. Three separate claims are involved: (1) one for $50,125; (2) one for $9,000; and (3) one for $10,200. The case was tried to the court without a jury. The district judge rejected all three claims of the Trustees. We affirm as to the first two claims, reverse and remand as to the third claim. I. Background For many years William A. Gray of Shreveport engaged in the construction business under the name of W. A. Gray Construction Company. To all appearances he was a successful contractor. For several years, however, before he died in 1956, he was in bad financial straits. With considerable skill he managed to conceal his financial plight until January, 1956. Pertinent to this action is the fact that Gray was the president and sole stockholder of Twin City Construction Company, a corporation Gray organized in 1951. Twin City conducted no business prior to the transactions in question in this case. Gray had an established line of credit at the Pioneer Bank. When the bank was organized in 1945, Gray was one of its first depositors and customers. Over a long course of dealings, the bank made many loans to Gray to finance his construction business and to permit him to start and carry forward individual construction contracts. Pioneer Bank had never sustained a loss on any loans to Gray. Rupert Campbell, President of the Pioneer Bank, handled Gray’s account himself. The district judge found: “It is apparent that those who did business with Gray had utmost confidence in his ability to meet his financial obligations.” [168 F.Supp. 505.] March 12, 1956 an involuntary petition in bankruptcy was filed against Gray. Two weeks later, on his voluntary petition, he was adjudicated a bankrupt. April 13, 1956 an involuntary petition in bankruptcy was filed against Twin City Construction Company by the Home Indemnity Company. April 21, 1956, Twin City voluntarily was adjudicated a bankrupt. At the time of the trial, Twin City owed $71,045.32 in unsecured claims and $4,531.38 in taxes; the company had assets of $91.14. Gray owed $794,277.99 in unsecured claims and $5,435.82 in taxes; he had assets of $8,771.23. II. The Claim for $50,125 On May 28, 1955, Gray talked with Campbell about obtaining a loan of $50,-000. He told Campbell that he wanted to give up doing business individually and do business in corporate form by activating Twin City Construction Company and channeling his construction contracts into that corporation. He stated that his health had been poor and that by using Twin City he could insure continuity and avoid personal liability. Gray said that he had arranged to obtain needed capital from a cousin who was going into business with him. The Pioneer Bank made the loan of $50,000, taking Gray’s personal note, payable in fifteen days. At Gray’s direction, the money was deposited in Twin City’s checking account. Shortly thereafter, Gray issued to himself stock of Twin City amounting to $49,500. At the time of the loan the bank held collateral moi't-gages amounting to $40,000 on Gray’s office building and equipment, a $40,000 mortgage on his home, and a pledge of all the stock of the Blair Apartments which Gray owned. Gray gave the bank copies of corporate resolutions authorizing him “to enter into any and all contracts whatsoever for Twin City and to do any and all acts whatsoever on such terms and conditions and for such considerations, within his discretion”, the intention being “to authorize W. A. Gray as President to represent this corporation in all matters whatsoever and, to confer on him the fullest possible powers of representation”. The resolutions also authorized the Pioneer Bank “to honor, receive, certify or pay all instruments [signed by Gray] * * * even though drawn or endorsed to [Gray] * * * or in payment of the individual obligation of such officer, or for deposit to his personal account, and said Bank shall not be required, or be under any obligation to inquire as to the circumstances of the issuance, or use of any [such] instrument * ” Twelve days later, June 9, 1956, Gray informed the Pioneer Bank that his plans had fallen through, that “the fellow who was going to put the money in with him wouldn’t go”, and that there was no necessity for the loan. The transaction was then closed out by payment to the bank of principal and interest, $50,125, in the form of a check drawn by Gray as president of Twin City. None of the $50,000 credit traceable to the loan had been withdrawn from Twin City’s account. Thus, except for bookkeeping purposes to reflect a loan to Gray and deposit to the account of Twin City, the $50,000 did not leave the possession of the bank. Payment of the loan simply required a reversal of bookkeeping entries and in effect the identical $50,000 originally credited to Twin City was returned to the bank. In the interval between the loan and its repayment, Twin City had a certified audit prepared showing a credit balance of $50,000 in the Pioneer Bank. This audit report and a financial statement were used by Gray in obtaining for Twin City a contractor’s performance bond from the Home Indemnity Company. Before issuing a bond, but after the $50,-000 loan had been repaid, Home Indemnity Company conducted an investigation of Twin City’s application for a bond. Home Indemnity’s investigator obtained a routine verification from the bank that as of May 31, 1955 Twin City had a balance of $50,000 in the Pioneer Bank. The bonding company made no attempt to inquire as to whether the $50,000 or any part of it was on deposit after May 31, 1955. On completion of its investigation and after it had satisfied itself with the personal guaranty of W. A. Gray, Home Indemnity wrote the bond June 21, 1956. Twin City had only one construction contract, a government contract at Blytheville, Arkansas. Eventually the company defaulted and Home Indemnity, as the insurer, paid bills of $52,130.42 to complete the contract. The district judge found that the Pioneer Bank had no knowledge of the issuance of Twin City stock to Gray and no knowledge of Gray’s intention to have the stock issued to himself in return for the proceeds of the loan. The district judge found that the Bank’s officers and employees were not parties to any misrepresentation of any character to the bonding company. The bank acted in good faith and was as much deceived by Gray as the bonding company was deceived. Just prior to the collapse of his operations in January of 1956, Gray had nine large government construction contracts in Arkansas. The district judge stated: “[T]he apparently substantial character of Gray’s business and account with the Bank * * * justified the course of dealing and confidence the Bank’s President had in him.” The record amply supports the findings of the district court. The Trustees argue that the Twin City payment of $50,125 was a voidable transfer for three reasons. (A) Twin City’s payment of Gray’s personal debt to the Bank was a transfer “without fair consideration” under the constructive fraud provisions of Section 67, sub. d(2) (b), 11 U.S.C.A. § 107, sub. d(2) (b). (B) The transfer was part of a scheme to hinder, delay, or defraud creditors within the meaning of Section 67, sub. d(2) (d), 11 U.S.C.A. § 107, sub. d(2) (d). (C) The payment is voidable pursuant to Section 70, sub. e of the Bankruptcy Act, under the Uniform Fiduciaries Act as adopted in Louisiana, LSA-R.S. 9:-3801-3814, particularly LSA-R.S. 9:-3808. A. Payment to the bank was not a transfer by Twin City without “fair consideration” under the constructive fraud provisions of the Bankruptcy Act. 11 U.S.C.A. § 107, sub. d(2) (b). The Trustees argue that on completion of the loan to Gray, the $50,000 was Gray’s to use as he pleased. When he chose to spend it by buying stock in Twin City, the money then belonged to Twin City. Twin City was a third party transferee, as to the bank. According to the Trustees’ argument, when Twin City, the bankrupt, under no obligation to the bank, paid Gray’s loan, it was the payment of a debt of another without “fair consideration”, under the language of the Act, and therefore a voidable transfer. There is no doubt that usually a diversion of corporate assets for the benefit of a third person, such as the payment of the loan of another, is a transfer without “fair consideration”. This however is not the usual case. The trial court found that repayment to the bank of the identical bookkeeping credit reflecting the proceeds of a loan never withdrawn was supported by a fair equivalent in value. The district judge held that under the law of Louisiana, either on the principle of quasi-contract (unjust retention of a benefit) or delictual responsibility, the circumstances gave rise to an antecedent indebtedness of Twin City sufficient to satisfy the requirement of “fair consideration”. The court found: “The circumstances of this case are unusual and the court, viewing the matter in its entirety, considers that this is, in fact and law, a situation in which the Court is called upon to exercise traditional equity powers of a Court of Bankruptcy.” [168 F.Supp. 510.] Whether fair consideration has been given for a transfer is “largely a question of fact, as to which considerable latitude must be allowed to the trier of the facts”. We find that the record supports the findings of the trier of the facts in this case. We are of the opinion that it is unnecessary to decide whether the facts meet the Louisiana requirements for a quasi-contract or a tort. We hold, as to the claim for $50,125, that the facts justify disregarding the fiction that Twin City was a separate legal entity. Gray and Twin City were one. There was such a degree of identity and commingling of affairs between Twin City and Gray that the corporation and its sole stockholder cannot be regarded as separate legal entities, insofar as the $50,000 loan is concerned. Gray was the sole stockholder. The corporate resolutions authorized Gray to act for Twin City in whatever way he saw fit, and authorized the Bank to honor Twin City checks drawn by Gray to pay personal debts. The loan was made on Gray’s credit, but the proceeds inured immediately to Twin City’s credit and the ostensible purpose of the loan, as stated to the bank, was to enable Gray to do business as Twin City Construction Company instead of W. A. Gray Construction Company. The hidden purpose was to enable Gray to obtain a performance bond in the name of Twin City that Twin City was not entitled to on the state of its finances and that Gray could not obtain on the state of his finances. After this object was accomplished, and before Twin City could even begin a separate existence, Twin City, through Gray, paid back the identical money lent to Gray and deposited in the corporate account only twelve days before. From the beginning to the end of the transaction Gray as Gray, or Gray as Twin City, made no effort to separate himself from his corporation — so far as the bank is concerned. To the extent that Gray is separable from Twin City, the loan was for the benefit of Twin City; if the loan was for the benefit of Gray, the bank had no alternative, under the language of the resolutions, to honoring Gray’s signature and instructions. It is one thing to observe the corporate fiction as if the fiction were the truth— when the fiction is not abused. It is quite a different thing when the sole stockholder either ignores the corporation as a separate entity or uses the corporate fiction as an instrument of deceit. Here, the corporation and the individual owner were two sides of a single false coin. Experienced counsel represent the parties to this appeal. They have not been able to find a case that this Court regards as similar on the facts to the instant case. Section 67, sub. d(l) (e) provides that consideration is “ ‘fair’ * * * when, in good faith, in exchange and as a fair equivalent therefor, property is transferred or an antecedent debt is satisfied”. Section 67, sub. d(l) defines debt broadly as “any legal liability, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent”. The requirement of “fair consideration” is aimed at preventing a bankrupt depleting his estate just preceding his bankruptcy either by improvidence or by action intended to defeat creditors or favor friends. As we read the statute in the light of its purpose, we think that the voidable transfer provisions were never intended to apply to this case. Here, Gray-Twin City, having accomplished the object of the loan in obtaining a performance bond, repaid the loan. There was no improvidence as in making a transfer with grossly unfair consideration, and no constructive or actual intention to defeat creditors or favor friends. It seems to us that of the things Gray did, the thing that he did in paying the loan was a far, far better thing than the record shows he had ever done. B. The transfer was not part of a scheme to, hinder, delay, or defraud creditors within the meaning of Section 67, sub. d(2) (d), 11 U.S.C.A. § 107, sub. d(2) (d) As distinguished from 107, sub. d(2) (b), subsection (d) requires a showing of “actual intent” to defraud creditors in order to set aside a transfer. Actual intent is a question of fact. The district court held — and we agree — that there was no proof of actual intent to defraud creditors of Twin City. Gray’s misrepresentations related to obtaining the bond. At the time the loan was repaid, Gray expected Twin City to be able to complete the Blythe-ville contract. He was confident that the venture would be a profitable one and that he would be able to rehabilitate himself financially. Although a transfer may have the effect of hindering or delaying or defrauding creditors, incidental effect is not enough to satisfy the requirement of actual intent to defraud. Coder v. Arts, 213 U.S. 223, 29 S.Ct. 436, 53 L.Ed. 772; In re Braus, 2 Cir., 1917, 248 F. 55. In any event, the Bank accepted the payment in good faith and is therefore a bona fide obligee within the protection of Section 67, sub. d(6). C. The Trustees’ argument for relief under the Uniform Fiduciaries Act, LSA-R.S. of 1950, 9:3801 et seq., must also fail. Section 3805 provides that a payee of a check or bill of exchange is liable to the drawer’s principal for the proceeds if: (1) the payee had actual knowledge that the drawer-fiduciary committed a breach of trust, or (2) if, in drawing the instrument, the drawer has in fact committed a breach of trust unknown to the payee, but the payee did know that the drawer was paying a personal debt. Under Section 3808 a drawee-bank becomes liable to the principal when a fiduciary draws a check on the principal’s account to pay a personal debt if in fact the fiduciary commits a breach of trust. The important factor under the Act in holding a bank responsible for a fiduciary’s breach of trust is whether or not the debt that was paid was for the personal use of the fiduciary. Thus, relief under the Act was allowed in LaVecchia v. North Carolina Joint Stock Land Bank, 1940, 218 N.C. 35, 9 S.E.2d 489, where the debtor drew a check as president of the company to buy land for his personal use. No part of the loan or its use inured to the company. Anacostia Bank v. United States Fidelity & Guaranty Co., 1941, 73 App.D.C. 388, 119 F.2d 455, involved a guardian-ward situation. The court implied that if the guardian had used the guardianship funds to pay a debt that in some way benefited the ward, instead of the guardian only, the drawee-bank would not be liable. But the loan was solely for the personal use of the guardian. The loan to Gray, however, was not a loan to a corporate officer for his personal benefit such as the Act contemplates. To the knowledge of the bank, the loan was for the benefit of Twin City and deposited to Twin City’s account. The conditions necessary for relief under the Act are not present here: the debt incurred was not the kind of personal debt contemplated by the Act; the Bank did not have actual knowledge of any breach of trust as to Twin City, if one was committed at all. II. The $9,000 Claim On December 28, 1955, within four months prior to the filing of the involuntary petition in bankruptcy against Twin City, the bank made a loan of $10,000 to Twin City. That same day Gray instructed the Bank to transfer $9,000 from Twin City’s checking account to Gray’s personal account. The transfer was accomplished by debit memorandum. Gray was acting as president of Twin City and pursuant to the extremely broad powers vested in him by the corporate resolution when he requested the transfer of funds. The $9,000 inured to the benefit of W. A. Gray Construction Company in that it was used to cover disbursements made and charged to the checking account of W. A. Gray Construction Company. At the time of the transfer Gray’s personal account was overdrawn in the amount of $4,398.69 which had occurred in the normal course of business of W. A. Gray Construction Company. Overdrafts occurred frequently in Gray’s account. In 1955 overdrafts were almost a daily occurrence. It was normal practice to cover such overdrafts by deposits in the W. A. Gray Construction Company account. The district court found that Pioneer Bank did not in fact receive the $9,000 deposited in the checking account of W. A. Gray Construction Company. The funds were credited to the checking account of the Construction Company and were utilized to balance the account, including the payment of overdrafts. The Pioneer Bank was financing Twin City on one contract and Gray on nine contracts. When the bank received the transfer of $9,000 it had no reason to believe that either Twin City or Gray was insolvent. Certainly the bank would not have made a loan to Twin City on December 29, 1955, if it had any idea that Twin City "was insolvent. The district court found that the Pioneer Bank acted in good faith in accepting the deposit of $9,000, in giving the credit, and by paying the items subsequently paid and covering the items included in the overdraft. Under Section 9 of the Fiduciaries Act (LSA-R.S. 9:3809), the bank is protected. This section reads: “If a fiduciary makes a deposit in a bank to his personal credit of checks drawn by him upon an account in his own name as fiduciary or of checks * * * drawn by him upon an account in the name of his principal if he is empowered to draw checks thereon, or of checks payable to his principal and endorsed by him, if he is empowered to endorse such checks, or if he otherwise makes a deposit of funds held by him as a fiduciary, the bank receiving such deposit is not bound to inquire whether the fiduciary is committing thereby a breach of his obligation as fiduciary ; and the bank is authorized to pay the amount of the deposit or any part thereof upon the personal check of the fiduciary without being liable to the principal, unless the bank receives the deposit or pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in making such deposit or in drawing such check, or with knowledge of such facts that its action in receiving the deposit * * * amounts to bad faith.” The purpose of Section 3809 is to protect a depository bank that acts in good faith without any knowledge other than the fact that funds are being transferred by a fiduciary to his personal account or to persons with whom he is dealing. Such knowledge alone will not satisfy the requirement of actual bad faith or knowledge that the fiduciary committed a breach of trust. The record is devoid of any evidence showing actual knowledge of a breach of fiduciary duty. And, the previous course of dealings between the parties, the identity of Gray with Twin City, and the broad powers authorizing Gray to act for Twin City (if the corporate fiction is entitled to weight in the circumstances of this case) support the view that the bank acted in good faith. The trustees contend that they are at least entitled to recover the amount of the overdraft. They argue that receiving fiduciary funds in payment of a fiduciary’s overdraft is not covered specifically by the Uniform Fiduciaries Act and that, under ordinary rules of liability which apply in situations not covered by the Act, the bank is liable. LSA-R.S. 9:3812. The trustees point out that the Act has for its purpose the protection of commercial transactions in which credits and bills of exchange are involved, not a transfer of funds in payment of a personal debt by means of a debit memorandum or a deposit in a fiduciary account which has the mechanical effect of paying the debt. The trustees rely on Colby v. Riggs Nat. Bank, 1937, 67 App.D.C. 259, 92 F.2d 183. In that case a fiduciary who had overdrawn his personal account drew a check upon the fiduciary account payable to himself individually and deposited it in the bank to the credit of his personal account. The Court held that the Act did not protect the bank since the bank did not receive the check in payment of the depositor’s personal indebtedness to it. Two of the five judges in Colby wrote dissenting opinions. We feel that the dissent expresses the better view. The line between giving a check to a bank to pay a personal debt and depositing a check in an overdrawn account is too fine a line for us to discern. The effect of Colby would be “to make the application of the Act to the innocent transferee, whom it seeks to protect, depend upon the banking procedure employed by this defalcating trustee seems unnecessarily formalistic”. Comment, 51 Harv.L.Rev. 563 (1937). III. The $10,020 Claim Twin City borrowed $10,020 from the Bank on December 29, 1955. At the same time the bank took a pledge agreement in keeping with its usual practice in making loans to finance Gray’s construction contracts. Twin City pledged the balance due on Blytheville contract it had with the federal government to secure the loan. No notice of the pledge was given to the government. Twelve days later the government made a payment of $11,693.18 to Twin City on the contract. The proceeds were deposited in Twin City’s account. Twelve days after the loan was made, Twin City directed the bank to enter a debit memorandum against the account for $10,020 to repay the loan. The transaction took place within the four month period prior to the filing of the involuntary petition in bankruptcy against the company. The Trustees contend that payment of the loan was a voidable preference under the Bankruptcy Act, 11 U.S.C.A. § 96, subs, a and b. Their argument is three-pronged: (A) the pledge was invalid because notice was not given to the government as required by the Federal Assignment of Claims Act, 31 U.S.C.A. § 203; (B) the pledge was invalid under state law because of lack of notice; (C) the bank had no right of set off. The district court held that notice was not necessary to perfect the pledge because payment within twelve days perfected it. The court also held that the Bank had a right of set off. We reverse and remand. A. The district court held that failure to comply with the Federal Assignment of Claims Act was not fatal to the validity of the pledge. We do not question that portion of the opinion. Where it appears that the government has paid or honored a claim, or no longer has any vital interest, the assignment is good between the parties or their successors in interest in spite of the fact that the government was not given notice of the assignment. Martin v. National Surety Co., 1936, 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822; Matter of Ideal Mercantile Corporation, 2 Cir., 1957, 244 F.2d 828; M. M. Landy, Inc. v. Nicholas, 5 Cir., 1955, 221 F.2d 923, 53 A.L.R.2d 1385; In re Webber Motor Co., D.C.N.J. 1943, 52 F.Supp. 742. Payment by the government to Twin City removed the case from the scope of rule expressed in National Bank of Commerce of Seattle v. Downie, 1910, 218 U.S. 345, 31 S.Ct. 89, 54 L.Ed. 1065, and brought it within the narrower limits of the Martin case. We cannot, however, agree with the district court’s construction of the Louisiana law of pledge and the bankruptcy principles applicable to set off. In order to have a preference under the Bankruptcy Act, six statutory elements must exist: (1) there must be a transfer of the debtor’s property, (2) to or for the benefit of a creditor, (3) for or on account of an antecedent debt; (4) the transfer must be made or suffered while the debtor is insolvent, (5) within four months of bankruptcy; and (6) the effect of the transfer must be to enable the creditor to obtain a greater percentage of his debt than another creditor of the same class. See 3 Collier on Bankruptcy § 60, page 753. If any of the six vital elements is lacking, there is no preference under Section 96, sub. a. But when the requirements of 96, sub. a are met, the preference will be voidable only if, under Section 96, sub. b, the transferee had reasonable cause to believe that the debtor was insolvent at the time of the transfer. Prior to the 1950 amendment to Section 96, sub. a, an assignment of a claim without notice as required by state law to the debtor of the claim could be struck down even though the assignment was made prior to the four month period. The theory was that if the lien was never perfected according to state law, or if it was perfected some time after the transfer (assignment), it was deemed to have been made within the four month period. Also, if perfection and execution were not simultaneous the assignment was for an antecedent debt because the date of perfection controlled. See Corn Exchange National Bank & Trust Co., Philadelphia v. Klauder, 1943, 318 U.S. 434, 63 S.Ct. 679, 87 L.Ed. 884. In 1950 Section 96, sub. a was amended in order to dilute the harshness of the Klauder rule. Thus, House Report No.1293, August 22, 1949, 81st Cong. 1st Sess., states that the purpose of the amendment was to provide “that no transfer made in good faith, for a present new consideration, shall constitute a preference to the extent of such consideration actually advanced, if the provisions of applicable State law governing such transfers are complied with, with an appropriately rigid time limitation (21 days) for such perfection if such limitation is not itself prescribed by the applicable State law.” As the Section stands today, if a lien, which is a transfer for purposes of the Act, is perfected under state law within twenty one days, or a shorter period if specified by state law, then the transfer is treated as if it were made when executed even though execution and perfection were not simultaneous. 11 U.S.C.A. § 96, sub. a(7). If it is treated in this manner there is no transfer for an antecedent debt, a vital element in establishing a preference. B. Therefore, the issue presented here narrows down to whether the pledge was validly perfected under Louisiana law within twenty one days as required by 96, sub. a(7). The district court held that payment within twelve days perfected the pledge. Thus, the court implied, the transfer was for a new and present consideration, and the antecedent debt element of preference was lacking. We are compelled to disagree with this view of Louisiana law. Payment did not perfect the pledge. The only way a pledge of a credit evidenced by a non-negotiable instrument can be perfected in Louisiana is by delivery of the instrument to the pledgee and by written notice to the debtor on the instrument. Articles 3158, 3160, LSA-Civil Code of 1870; Commercial Bank of Alexandria v. Shanks, 1911, 129 La. 861, 56 So. 1028. See also Slovenko, Of Pledge, 33 Tul.L.Rev. 59, 106-107 (1959). It is the notice to the debtor of the credit that amounts to constructive possession of the credit. Denis, Contract of Pledge (N.O.1898), p. 29,479. Article 3160 of the Code provides: “When the thing given in pledge consists of a credit or instrument not negotiable, the pledge shall be complete as to all the world, as soon as the debtor of such pledged credit or instrument shall have been notified in writing of the giving of such pledge.” Lack of notice will not affect the validity of the pledge as between the parties. Sambola v. Fandison, La.App., 1938, 178 So. 276. But under Section 70, sub. e(l) of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. e(l), the Trustee stands in the shoes of a general creditor who could attack the pledge. The Trustees’ argument that LSA-R.S. of 1950, 9:4321-4323 changed the notice requirement in Louisiana is without merit. Those sections relate only to obligations not evidenced by a written instrument. Since the pledge was not validly perfected under Louisiana law, the district court must inquire into the other elements of a preference to see if one existed and whether it was voidable under Section 96, sub. b. C. We must also reverse on the issue of set off. Generally, a bank may apply the debtor’s deposits on his debts to the bank as they mature. 5A Michie, Banks and Banking § 114. In the absence of fraud or collusion, or an intent to effect a preference, a debtor’s insolvency will not affect the bank’s right of set off if the deposit was made in the ordinary course of business and the money deposited was subject to withdrawal by the depositor. First National Bank of Negaunee v. Fox, 6 Cir., 1940, 111 F.2d 810, 814. “It is well-settled”, the court said in the Fox case, “that in the absence of fraud and collusion or intent to effect a preference, a bank may set off a deposit made in the ordinary course of business, and subject to withdrawal by the depositor even though it may know the depositor is insolvent at the time”. However, a set off may be attacked as a voidable preference under certain circumstances. In Cusick v. Second National Bank, 1940, 73 App.D.C. 16, 115 F.2d 150, in which the bank set off a debtor’s deposits of funds that were paid pursuant to two construction contracts against two loans made by the bank, the court said that the trustees could attack the set off as a voidable preference if: (1) at the time of the deposits either the company or the bank intended them to operate as payment of the debt rather than as an ordinary deposit subject to the depositor’s withdrawal; (2) at the time of the deposit the depositor was in fact insolvent; and (3) the bank had reasonable cause to believe the depositor was insolvent at that time. Under the facts surrounding the Twin City deposit we think the deposit was for the purpose of payment of the debt. As soon as Gray received the proceeds under the contract he transferred them by debit memorandum to the Bank. The deposit was made solely to repay the loan. It was a cloak for payment. See Citizens’ National Bank of Gastonia, N. C. v. Lineberger, 4 Cir., 1930, 45 F.2d 522. Thus, there was a transfer that might constitute a voidable preference. Accordingly we must reverse and remand the case for the district court to make additional findings on the Trustees’ third claim, for $10,020. The judgment is affirmed in part and reversed and remanded in part. . 11 U.S.C.A. § 107, sub. 4(2) (b) provides: “Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent * * *. (b) as to then existing creditors and as to other persons who become creditors during the continuance of a business or transaction, if made or incurred without fair consideration by a debtor who is engaged or is about to engage in such business or transaction, for which the property remaining in his hands is an unreasonably small capital, without regard to his actual intent.” . “Transfers made to benefit third par-tries are clearly not made for a ‘fair consideration’. 4 Collier on Bankruptcy, (14 Ed.) p. 363. Davis v. Hudson Trust Co., 3 Cir., 1928, 28 F.2d 740, certiorari denied 278 U.S. 655, 49 S.Ct. 179, 73 L.Ed. 565; Barr & Creelman Milling & Plumbing Supply Co. v. Zoller, 2 Cir., 1940, 109 F.2d 924; Irving Trust Co. v. B. Altman & Co., 1933, 151 Misc. 504, 270 N.Y.S. 781; Hansen v. Cramer, 1952, 39 Cal.2d 321, 245 P. 2d 1059, 30 A.L.R.2d 1204. . LSA-Civil Code, Articles 1896, 2292, 2293, 2294, 2300, 2301. See also Howe, Studies in the Civil Law (N.O. 1896), Chap. X, 170-190. . “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.” LSA-Civ. Code, Art. 2315. . “Whether a fair consideration has been given for a transfer must depend on all the circumstances of the case. Fairness in every case is largely a question of fact, as to which considerable latitude must be allowed to the trier of the facts.” Collier’s Bankruptcy Manual (Oglebay, Kelliher and Newkirk) (1948), p. 845, discussing Section 67, sub. d. . Section 67, sub. d(2) on which the trustees rely is taken from Section 5 of the Uniform Fraudulent Conveyances Act (not adopted in Louisiana) ; see 9B Uniform Laws Annotated, p. 102. Maclachlan, Handbook of the Law of Bankruptcy (Hornbook Series, 1956), page 271, Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_casesource	046	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. AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. UNITED STATES et al. No. 74. Argued May 19, 1960. Decided June 27, 1960. Peter T. Beardsley argued the cause for appellants. With him on the brief was Larry A. Esckilsen. Richard A. Solomon argued the cause for the United States. With him on the brief were Solicitor General Rankin and Acting Assistant Attorney General Bicks. Robert W. Ginnane argued the cause and filed a brief for the Interstate Commerce Commission, appellee. Robert L. Pierce argued the cause for Pacific Motor Trucking Co. et alv appellees. With him on the brief were Edward M. Reidy, Thormund A. Miller, Wm. Mein-hold, Henry M. Hogan, Walter R. Frizzell and Beverley S. Simms. Mr. Chief Justice Warren delivered the opinion of the Court. The principal question presented on this appeal is whether the appellee Interstate Commerce Commission properly declined to impose certain restrictions upon motor carrier permits it issued to a trucking company which is a subsidiary of a railroad. The permits in question are designed to allow appellee Pacific Motor Trucking Company, a wholly owned subsidiary of Southern Pacific Company, to perform a particular type of transportation service for appellee General Motors Corporation. Prior to issuance of these permits, Pacific Motor already had been authorized to conduct certain trucking activities in a number of States into which Southern Pacific’s extensive railway system penetrates. Without adverting to immaterial details, that authority may be described as follows: Pacific Motor held common carrier certificates from the Commission for the transportation of commodities, by way of service auxiliary to and supplemental of Southern Pacific rail service, over routes paralleling Southern Pacific lines in Oregon, California, Nevada, Arizona, New Mexico, and Texas. It also held contract carrier authority from the State of California for intrastate transportation of trucks and automobiles. Finally, it had been granted contract carrier permits by the Commission for the transportation of automobiles, trucks, and buses from certain points in California to three nonrail points in Nevada, to two points on the Mexican border, to certain points in Los Angeles Harbor, and to points in Nevada located on the Southern Pacific line. These latter contract carrier permits did not contain restrictions designed to make the service auxiliary to and supplemental of Southern Pacific rail service. Pacific Motor’s only contract carrier shipper has been General Motors. By the four applications which gave rise to the present controversy, Pacific Motor sought to extend the scope of its contract carrier service for General Motors.. It requested authorization from the Commission for the transportation of new automotive equipment from plants of General Motors at Oakland, Raymer, and South Gate, California, to various interstate destinations not included within its prior permits. Generally speaking, the first application, designated Sub 84, covered contract carrier service from the Oakland plants to points on the Southern Pacific line in Oregon; the second, Sub 35, covered similar service to three Nevada nonrail points; the third, Sub 36, covered transportation from the Raymer plant to points in Arizona which are stations on the Southern Pacific line; and the last — and broadest — application, Sub 87, covered transportation from the Oakland, Raymer, and South Gate plants to points in seven States, whether or not on the Southern Pacific line. The Commission proceedings resulted in the grant of some, but not all, of the requested authority. On May 8, 1957, the Commission acted favorably on the Sub 84 application. 71 M. C. C. 561. However, the Commission thereafter consolidated the four applications and heard oral argument. On September 9, 1958, the Commission issued its final report, 77 M. C. C. 605, which may be described specifically enough for our purposes as authorizing transportation by Pacific Motor to the three additional Nevada nonrail points and to points on the Southern Pacific line in Nevada, Utah, Arizona, Oregon, and New Mexico. Otherwise, the applications were denied. There were certain other conditions imposed by the Commission, which we will detail later, but the major restriction was the limitation of points of destination to points on the Southern Pacific line. Appellants — American Trucking Associations, Inc., its Contract Carrier Conference, the National Automobile Transporters Association, and six motor carriers — brought suit in Federal District Court to set aside the Commission’s order. See 28 U. S. C. § 1336. Appellees Pacific Motor and General Motors intervened in support of the order. The United States was named a party defendant, together with the Interstate Commerce Commission, but did not either participate in or oppose the defense. See 28 U. S. C. § 2323. A three-judge court, which was convened pursuant to 28 U. S. C. §§ 2325 and 2284, denied relief. 170 F. Supp. 38. Our appellate jurisdiction was invoked under 28 U. S. C. § 1253, and we noted probable jurisdiction. 361 U. S. 806. In this Court, the Commission opposes and the United States supports the appellants. There is a preliminary challenge by Pacific Motor and General Motors to appellants’ standing, a challenge which was sustained by two members of the lower court. We disagree with this holding. Since the basis for our view on the problem of standing will be more readily appreciated after the merits of the case have been fully treated, we postpone our discussion of this matter. The critical issue raised by appellants is whether the Commission exceeded its statutory authority by granting the permits in question to a railroad subsidiary without imposing more stringent limitations than it did. On this question, the lower court unanimously ruled against appellants. This judgment must be evaluated in the light of this Court’s previous decisions, set against the background of Commission practice. Both the Commission and this Court have recognized that Congress has expressed a strong general policy against railroad invasion of the motor carrier field. This policy is evinced in a general way in the preamble to the 1940 amendments to the Interstate Commerce Act — the National Transportation Policy, 54 Stat. 899 — which articulates the congressional purpose that the Act be “so administered as to recognize and preserve the inherent advantages” of “all modes of transportation.” More particularly, Congress’ attitude is reflected by a proviso to § 5 (2) (b) of the Act, which enjoins the Commission to withhold approval of an acquisition by a railroad of a motor carrier “unless it finds that the transaction proposed will be consistent with the public interest and will enable such carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.” The Commission long ago concluded that the policy of the transportation legislation requires that the standards of § 5 (2) (b) — then § 213 (a) of the Motor Carrier Act of 1935, 49 Stat. 555 — be followed as a general rule in other situations, notably in applications for common carrier certificates of convenience and necessity under § 207. Kansas City Southern Transport Co., Common Carrier Application, 10 M. C. C. 221 (1938). And this Court has confirmed the correctness of the Commission’s conception of its responsibilities under both § 5 (2) (b) and § 207. See United States v. Rock Island Motor Transit Co., 340 U. S. 419; United States v. Texas & Pacific Motor Transport Co., 340 U. S. 450; Interstate Commerce Comm’n v. Parker, 326 U. S. 60. The Court has also taken cognizance of the congressional confirmation of the Commission’s policy by the 1940 re-enactment in § 5 (2) (b) of the provisions of § 213 (a), after some of the pertinent Commission decisions had been specifically called to Congress’ attention. See United States v. Rock Island Motor Transit Co., supra, at 432. And although the instant proceeding involves contract carrier applications and hence falls under § 209, the Commission in its opinion recognized that, for purposes of the relevance of the § 5 (2) (b) standards, there is no distinction between this type of case and proceedings arising under § 207. 77 M. C. C. 621-622. Nor can we discern any grounds for differentiation. Thus it is evident that the policy of opposition to railroad incursions into the field of motor carrier service has become firmly entrenched as a part of our transportation law. Moreover, this general policy fortunately has not been implemented merely by way of a more or less unguided suspicion of railroad subsidiaries, but rather has evolved through a series of Commission decisions from embryonic form into a set of reasonably firm, concrete standards. The Commission’s opinion in the case at bar describes these standards as follows: “The restrictions usually imposed in common-carrier certificates issued to rail carriers or their affiliates in order to insure that the service rendered thereunder shall be no more than that which is auxiliary to or supplemental of train service are: (1) the service by motor vehicle to be performed by rail carrier or by a rail-controlled motor subsidiary should be limited to service which is auxiliary to or supplemental of rail service, (2) applicant shall not serve any point not a station on the railroad, (3) a key-point requirement or a requirement that shipments transported by motor shall be limited to those which it receives from or delivers to the railroad under a through bill of lading at rail rates covering, in addition to the movement by applicant, a prior or subsequent movement by rail, (4) all contracts between the rail carrier and the motor carrier shall be reported to the Commission and shall be subject to revision if and as the Commission finds it to be necessary in order that such arrangements shall be fair and equitable to the parties, and (5) such further specific conditions as the Commission, in the future, may-find it necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, train service... The key phrase in this summary is obviously “auxiliary to or supplemental of train service.” If a trucking service can fairly be so characterized, it is clear enough that there is compliance with the mandate of § 5 (2) (b) that the carrier should be able “to use service by motor vehicle to public advantage in its operations.” But if, on the other hand, the motor transportation is essentially unrelated to rail service, the railroad parent is invading the field of trucking, and, under normal circumstances, the National Transportation Policy is thereby offended. It is this “auxiliary to or supplemental of” verbalization of the policy of § 5 (2) (b), as applied to § 207, that has found favor in this Court. See American Trucking Assns. v. United States, 355 U. S. 141; United States v. Rock Island Motor Transit Co., supra; United States v. Texas & Pacific Motor Transport Co., supra; Interstate Commerce Comm’n v. Parker, supra. Moreover, while the Court has not specified the more particularized restrictions which it might regard as essential constituents of the “auxiliary to or supplemental of” concept, it is significant that the Court in Rock Island apparently accepted the Commission’s view that the phrase implies a limitation of function, i. e., type of trucking service, and not merely a geographical limitation, i. e., place where the service is performed. 340 U. S., at 436-444. But while the judicial and administrative current has run strongly in favor of auxiliary and supplemental restrictions on motor carrier subsidiaries of railroads, the Commission has determined, and this Court has agreed, that the public interest may sometimes be promoted by not imposing such limitations. A prime example is American Trucking Assns. v. United States, supra, where the trucking service was not being performed adequately by independent motor concerns. We there observed that the mandatory provisions of § 5 (2) (b) do not appear in § 207, and approved the Commission’s policy of not attaching auxiliary and supplemental restrictions where “special circumstances” prevail. We concluded: “We repeat... that the underlying policy of § 5 (2) (b) must not be divorced from proceedings for new certificates under § 207. Indeed, the Commission must take ‘cognizance’ of the National Transportation Policy and apply the Act ‘as a whole.’ But... we do not believe that the Commission acts beyond its statutory authority when in the public interest it occasionally departs from the auxiliary and supplementary limitations in a § 207 proceeding.” 355 U. S., at 151-152. These, then, are the guiding principles which have been established by what has gone before and which mark the range of our inquiry in this case. Since, as we have indicated, the Commission believes, and we agree, that there is no relevant difference between a § 207 proceeding and a § 209 proceeding so far as the problem here involved is concerned, the decisive questions are: (1) Did the Commission impose conditions upon the permits issued to Pacific Motor under which the service to be rendered would be truly auxiliary to and supplemental of Southern Pacific’s rail service? (2) If not, was the Commission’s waiver of such restrictions justified by “special circumstances”? The first question need not detain us long. The principal permits were qualified only by the following conditions: (1) the service was to be restricted to points which are stations on the Southern Pacific line; (2) “there may from time to time in the future be attached to the permits... such reasonable terms, conditions, and limitations as the public interest and national transportation policy may require”; and (3) Pacific Motor was to request the imposition of restrictions upon its outstanding certificates with respect to the transportation of automobiles and trucks. The last restriction was designed to obviate any dual operation problem under § 210, and is not pertinent to the auxiliary and supplemental standard. See 77 M. C. C., at 624. The second condition obviously is no restriction at all on present operations, and hence can hardly be said to limit the trucking to an auxiliary or supplemental service. We so recognized in American Trucking Associations, where the certificates contained a similar restriction. 355 U. S., at 154. And the first limitation, upon which appellees principally rely, is but a geographical, not a functional, restriction. As we have noted, Rock Island gives strong support to the view there expressed by the Commission that the essence of auxiliary and supplemental limitation is functional control. While it may be true, as appellees argue, that such a geographical limitation is a necessary ingredient of an auxiliary and supplemental restriction, it does not by any means follow that this ingredient makes the whole. Moreover, we have the strongest evidence that the Commission did not believe that it did, since the Commission specifically refrained from imposing the most general, but obviously the most significant, restriction — that “the service by motor vehicle... should be limited to service which is auxiliary to or supplemental of rail service.” 77 M. C. C., at 622-623. The conclusion seems inescapable that the conditions imposed upon the permits to Pacific Motor, though undoubtedly “restrictions” in a general sense, were not limitations sufficient to hold Pacific Motor to a truly auxiliary and supplemental service. Appellees urge that nonetheless there were “special circumstances” within the meaning of American Trucking Associations. Appellees point to various findings of fact by the Commission, such as the need of General Motors for a service of the type here involved, Pacific Motor’s experience and qualifications, and the unlikelihood that a significant amount of traffic would be diverted from rail to motor transportation even if the permits were granted. The difficulty with appellees’ argument is that the Commission did not find that considerations of this nature constituted “special circumstances” under the American Trucking Associations rule, but rather viewed them simply as supporting the basic determinations which it was required to make under § 209 (b) in order to issue a contract carrier permit to any applicant. And naturally we should not substitute our judgment for the Commission’s on a matter like this, for “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, 87. The Commission assigned but a single reason for not imposing the normal restrictions upon the Pacific Motor permits: to do so would compel Pacific Motor to conduct a common carrier service. Appellees support this decision upon the ground that the Commission is without authority under § 209 (b) to impose such character-destroying conditions upon a contract carrier permit. We need not determine whether the Commission possesses the power to attach such limitations, or, in the alternative, to award a common carrier certificate, since we believe that, in any event, the Commission’s reason is insufficient justification for its action. Assuming that the restrictions which would limit Pacific Motor’s operations to an auxiliary and supplemental service would also be incompatible with a contract carrier operation, and that the Commission was consequently powerless to impose those restrictions, this alone does not, in our view, meet the “special circumstances” test. There is, for example, no finding that independent contract carriers were unable or unwilling to perform the same type of service as Pacific Motor. In such a situation we do not believe that the policy of the Act allows the Commission to authorize service by Pacific Motor, limited only to points on the Southern Pacific line, simply because General Motors wants a contract carrier operation. If that desire of General Motors, in combination with the policy of the Act, disables a railroad subsidiary from obtaining the business, that is simply the result of the National Transportation Policy. This consequence, we believe, does not meet the compelling public interest standard established by American Trucking Associations. A contrary conclusion would open the door to approval of over-the-road contract trucking by railroad subsidiaries to most, if not virtually all, major destinations, and hence would greatly attenuate the safeguards which have been painstakingly erected to prevent railroad domination of trucking. Appellees say that these safeguards are no longer needed, because independent trucking is no longer an “infant industry.” This is an immaterial argument in this forum. We do not condemn the wisdom of the Commission's action. We simply say that the transportation legislation does, and that the pardoning power in this case belongs to Congress. Thus the decision of the District Court must be reversed, because we conclude that the Commission fell into error of law. The question then arises whether there should be a remand which permits further proceedings. Appellants argue that there should not be,.because the Commission, according to appellants, found that there were no special circumstances aside from the alleged impossibility of imposing the usual restrictions upon a contract carrier. It is true that the Commission based the rail-point restriction upon “the absence of any showing of unusual conditions.” 77 M. C. C., at 623. But we cannot be certain that the Commission thereby intended to say that there were no special circumstances within the meaning of the American Trucking Associations principle. As we have pointed out, the rail-point restriction, standing alone, is different in kind from limitations which impose an auxiliary and supplemental service. Consequently, we cannot be sure that the Commission believes the same sort of circumstances determine the applicability of both types of restrictions. Moreover, the Commission’s discussion of this point is open to the interpretation that it was repeating some of its conclusions with respect to the § 209 (b) standards, e. g., “the effect which granting the permit would have upon the services of the protesting carriers.” See note 9, supra. Under these circumstances, we would be warranted in precluding further proceedings only if, by an independent search of the record, we were able to conclude that, as a matter of law, there are no factors present which the Commission could have regarded as special circumstances. Although the findings of the Commission which are reflected in its opinion do not seem to us to comply with the American Trucking Associations standard, as the silence of the Commission seems to imply, we are unwilling in a complicated proceeding of this nature to deal with this problem ab initio or to say that the Commission could not have made additional findings on the basis of the evidence had it been aware that the ground its decision rested upon was insuffi-eient. Consequently, under the particular circumstances of this case, we believe that it should be remanded to the Commission so that it can apply what we hold to be the applicable principles in such further proceedings as it may find to be consistent with this opinion. The reversal and remand, however, will not include one aspect of the Commission’s action — the grant of authority to provide a service to three nonrail points in Nevada— which is not governed by the rationale of our opinion. This small segment of the controversy has been submerged in the dispute over the much broader permit covering transportation to rail points in various States. It is obvious, of course, that “special circumstances” would have to be present to justify this Nevada award. Ap-pellees maintain that there was such justification, and appellants have not established that it was lacking. Nor do we perceive any other reason to upset this award. Consequently, we affirm with respect to this particular permit. There remains only the question of standing. Although the three-judge court concluded that the Commission had not exceeded its authority in this case, two members of the court also believed that “there was no showing of actual or anticipated direct injury such as would entitle [the appellants] to institute this action.” 170 F. Supp., at 48. In support of this conclusion, appellees rely principally upon Atchison, T. & S. F. R. Co. v. United States, 130 F. Supp. 76, aff’d per curiam, 350 U. S. 892. That decision held that certain railroads had no standing to challenge a Commission order authorizing acquisition by one motor carrier of others. Since the lower court in Atchison stressed the fact that the Commission there had not created any additional motor carrier service, the decision clearly is not in point. In the instant case, not only has the Commission created new operating rights, but they are rights in which appellants have a stake. And surely the statement by General Motors that it would not in any event give the business to any appellant cannot deprive appellants of standing. The interests of these independents cannot be placed in the hands of a shipper to do with as it sees fit through predictions as to whom its business will or will not go. The decision we believe to be controlling is not Atchison, but rather Alton R. Co. v. United States, 315 U. S. 15, where the Court confirmed the standing of a railroad to contest the award of a certificate to a competing trucker. We conclude, then, that appellants had standing to maintain their action to set aside the Commission’s order under the “party in interest” criterion of § 205 (g) of the Interstate Commerce Act, 49 Stat. 550, 49 U. S. C. § 305 (g), and under the “person suffering legal wrong... or adversely affected or.aggrieved” criterion of § 10 (a) of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009 (a). Our disposition of the case makes it unnecessary to consider the other issues raised by appellants. We have no desire to hamper the Commission in the discharge of its heavy responsibilities, and we have always recognized that the Commission has been given a wide discretion by Congress. But that discretion has limits; our decision in favor of the Commission in American Trucking Associations established the limits relevant to this case; and we conclude that those limits have been transgressed. Of course, in remanding the case we do not intend to circumscribe the Commission in determining whether appropriate “special circumstances” do exist in this instance which would take the case out of the otherwise conventional standards. The judgment of the District Court is reversed and the case is remanded to that court with directions to remand to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate. It is so ordered. With respect to the transportation from Oakland and Raymer, the States were Washington, Oregon, Idaho, Nevada, Utah, Arizona, and New Mexico. The proposed transportation from South Gate was to be to the same States, excluding New Mexico but adding Montana. One Commissioner who concurred said that he would give broader authority; three Commissioners dissented from the grant; and of the three Commissioners who did not participate, one said that he would have joined the dissenters. 54 Stat. 906, as amended, 49 U. S. C. § 5 (2) (b). 49 Stat. 551, 49 U. S. C. §307. 49 Stat. 552, as amended, 49 U. S. C. § 309. The first major Commission decision was rendered the year after enactment of the Motor Carrier Act of 1935. Pennsylvania Truck Lines, Inc., Acquisition of Control of Barker Motor Freight, Inc., 1 M. C. C. 101. In refusing approval of an acquisition unless certain conditions were met, a division of the Commission stated: “... [W] e are not convinced that the way to maintain for the future healthful competition between rail and truck service is to give the railroads free opportunity to go into the kind of truck service which is strictly competitive with, rather than auxiliary to, their rail operations. The language of section 213... is evidence that Congress was not convinced that this should be done. Truck service would not, in our judgment, have developed to the extraordinary extent to which it has developed if it had been under railroad control. Improvement in the particular service now furnished by the partnership might flow from control by the railroad, but the question involved is broader than that and concerns the future of truck service generally. The financial and soliciting resources of the railroads could easily be so used in this field that the development of independent service would be greatly hampered and restricted, and with ultimate disadvantage to the public.” Id., at 111-112. The development of Commission policy is traced in detail in Rock Island Motor Transit Co. — Purchase—White Line Motor Freight Co., 40 M. C. C. 457. See also the similar and lengthy discussion in United States v. Rock Island Co., supra, passim. “The Commission asserts that the meaning of ‘auxiliary and supplemental’... was not geographical.... “What was in the Commission’s mind as to the meaning of auxiliary and supplemental at the time it issued its certificate, we cannot be sure. At present a motor service is auxiliary and supplemental to rail service, in the Commission’s view, when the railroad-affiliated motor carrier in a subordinate capacity aids the railroad in its rail operations by enabling the railroad to give better service or operate more cheaply rather than independently competing with other motor carriers.... The Commission has continually evidenced... its intention to have rail Question: What is the court whose decision the Supreme Court reviewed? 001. 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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 FORCHEIMER v. YOUNG et al. COHEN et al. v. SAME. No. 9399. Circuit Court of Appeals, Sixth Circuit. April 21, 1943. Harris W. Wienner, of Detroit, Mich., and Meyer Abrams, of Chicago, 111., for appellants. Cook, Smith, Jacobs & Beake, Butzel, Eaman, Long, Gust & Bills, Miller, Can-field, Paddock & Stone, Robert S. Marx, Lawrence I. Levi, and Carl Runge, all of Detroit, Mich., for appellees. Before ALLEN, MARTIN, and McALLISTER, Circuit Judges. PER CURIAM. On the previous appeal in this cause, the appellant, Benjamin E. Cohen, who as a stockholder of the L. A. Young Spring & Wire Corporation brought a derivative action against appellee Leonard A. Young and others, obtained a reversal of the decree of the district court approving, over appellant’s objection, the compromise settlement of the corporate cause of action against appellee Leonard A. Young and others. The cause was remanded for further proceedings, with directions that the district court personally examine the statements of appellee Young and of the auditors upon which the attorneys who recommended the compromise settlement had relied, and that the appellant be permitted to go forward with evidence limited to the single subject of the solvency of the appellee Young. Cohen v. Young, 6 Cir., 127 F.2d 721. It appears from the record presented on the present appeal by Benjamin E. Cohen that the district court has complied in all particulars with the former mandate of this court, has received and considered all evidence proffered, and has given appellant a full and fair hearing; and it further appears from the entire record that the findings of fact recorded by the district court are supported by substantial evidence, and that the conclusions of law drawn therefrom by the district court are correct. Accordingly, the decree of the district court, approving the compromise settlement, dismissing with prejudice the bill of complaint and the supplemental bills of complaint, and adjudicating other matters, is in all respects affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_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. Ellen D. MITCHELL, Appellant, v. Cynthia D. ENSOR, Appellee. Ellen D. MITCHELL, Appellant, v. Cynthia D. ENSOR et al., Appellees. Nos. 20916, 20993. United States Court of Appeals District of Columbia Circuit. Argued Sept. 19, 1968. Decided Feb. 4, 1969. Mary M. Burnett, Washington, D. C., for appellant. William H. Bradford, Washington, D. C., with whom John G. DeGooyer, Washington, D. C., was on the brief, for ap-pellee, Ensor. Before Wilbur K. Miller, Senior Circuit Judge, and Danaher and Tamm, Circuit Judges. Circuit Judge Danaher became Senior Circuit Judge on January 23,1969. TAMM, Circuit Judge. This case presents for our determination the permissibility and legality of certain awards of compensation to the guardian ad litem, temporary conservator and permanent conservator of the person and estate of the appellant. It arises on appeal from orders of the district court granting compensation to those officers and ratifying the report of the auditor. The facts of this case are particularly pertinent to its disposition. Appellant, Mrs. Ellen Donoho Mitchell, is a resident of Maryland. On May 7, 1965, she was arrested for disorderly conduct while visiting the District of Columbia and confined at D. C. General Hospital. At the time of her arrest and incarceration she had in her possession certain clothing and personal effects, $90.00 in cash, a savings account passbook indicating a balance of approximately $1,200 with the Maryland National Bank, and a dividend check for $745 payable to her order from Strayer’s Business College, Inc., a Maryland corporation. Approximately one month after her arrest, Mrs. Mitchell was ordered committed to the St. Elizabeths Hospital as being “of unsound mind or * * * mentally incompetent so as to be unable to understand the proceedings against [her] or properly to assist in [her] own defense.” 24 D.C.Code § 301(a) (1967). In December, 1965, appellee Ensor, as sister of the appellant, petitioned the trial court for the appointment of a temporary and permanent conservator pursuant to 21 D.C.Code § 1501 (1967). The petition alleged, inter alia, that Mrs. Mitchell had, at the time of her commitment to the Hospital, an annual income of $5,000 and that she owned personal property in the amount of $51,945, consisting of the items in her possession at arrest plus one hundred twenty-four and one-half shares of stock in Strayer’s Business College, Inc. (represented by petitioner to be a District of Columbia corporation) valued in excess of $50,000. Appellee Ensor further alleged that the appellant’s property interests needed immediate representation in connection with negotiations for the sale of the corporation. On the basis of this petition, District Judge Hart scheduled a hearing with regard to the appointment of a permanent conservator and appointed John L. Laskey as guardian ad litem of the appellant and appellee, R. K. Kennon Jones, her temporary conservator. The guardian ad litem reported to the court that the actual value of the appellant’s stock was in the neighborhood of a quarter of a million dollars and that his investigations disclosed the desirability of appointing a permanent conservator. On January 26,1966, the court authorized the guardian to employ, at the expense of the estate, an independent psychiatrist to examine Mrs. Mitchell and to report his findings to the court. The temporary conservator’s sixty-day report, filed February 23, 1966, showed an estate consisting of the property and stock interest already mentioned plus a second dividend check of $1,867 and a second bank account of $80. The psychiatrist filed a written report and testified at a hearing on March 1, 1966, that Mrs. Mitchell was suffering from “schizophrenic reaction, chronic undifferentiated type” (Tr. Romig, p. 8) and that in his opinion she was unable properly to care for her property. At another hearing on March 4, 1966, Hugh J. McGee, serving as counsel for Mrs. Mitchell, raised some questions going to the court’s jurisdiction. Judge Gasch postponed decision on appointing a permanent conservator and by letter asked the guardian ad litem to report on the jurisdictional questions. The guardian ad litem subsequently reported that, in his opinion, the court did have jurisdiction to appoint a conservator. On March 17, 1966, Judge Gasch ordered that appellee Ballard be appointed permanent conservator, and, on March 21, the court awarded compensation to the guardian ad litem in the amount of $2,382 ($1,500 of which was ultimately paid) and subsequently to the temporary conservator in the amount of $3,321. On May 2, 1966, the Court of General Sessions dismissed the disorderly conduct charge against Mrs. Mitchell, who then was released from St. Elizabeths and returned to her home in Baltimore. On Mrs. Mitchell’s motion for summary reversal of the orders appointing temporary and permanent conservators, this court, on June 30, remanded the case to the district court for further consideration in accordance with an accompanying per curiam opinion. This court held (1) that Mrs. Mitchell was not “residing in” the District of Columbia as that term is used in 21 D.C.Code § 1501, and (2) that Strayer’s is a Maryland corporation and that “the stock interest of a Maryland corporation, the certificates of which are not present in the District, is not a sufficient basis upon which the District Court might appoint a conservator.” Consequently, the case was remanded for consideration of whether a conservator should have been appointed on the basis of the remaining property in the District. After a hearing on remand, Judge Gasch issued a memorandum dated September 1, 1966, in which he summarized the considerations that led to the appointment of a conservator. Recognizing that in the light of subsequent developments the stock interest in Stray-er’s Business College could not form the basis for the appointment, he nonetheless cóñ'cludéd that, “having appointed * * * a Guardian Ad Litem a temporary conservator and a permanent conservator for the protection of the property of the patient, and since these officers of the court have performed their duties and discharged their responsibilities in such a way that the patient has derived benefit from their actions, the Court feels that they should be compensated for their services rendered.” Accordingly, he invited the conservators to submit statements for their professional services. Though the memorandum is not explicit, Judge Gasch apparently concluded that the conservator was properly appointed on the basis of the remaining property in the District. On December 28, 1966, the court ordered that the funds remaining in the custody of the conservator be divided equally between the temporary and permanent conservators (notwithstanding the earlier award to the temporary conservator, which was never paid). The report of the auditor, filed February 16, 1967, and ratified by order on March 29, 1967, included the following salient information. Assets actually taken over by the permanent conservator amounted to $3,892, consisting of two dividend checks and two bank accounts. Disbursements totaled $2,954 including $480 paid to the psychiatrist who testified at the March 1 hearing, $912 in payment of Mrs. Mitchell’s state income taxes, and $1,500 paid to the guardian ad litem as part of his authorized fee of $2,381. After deducting his $50 fee, the auditor recommended that the balance of the estate be distributed equally to ap-pellees Jones and Ballard. This court granted Mrs. Mitchell leave to appeal in forma pauperis from the orders granting compensation to the conservators and ratifying the report of the auditor. Appellees Jones and Ballard filed no briefs and made no appearance. Counsel for appellee Ensor stated on oral argument that his sole interest was to protect his client from any assessment of costs or attorney’s fees as a result of the conservatorship proceedings. The essence of Mrs. Mitchell’s claim was that a conservator should never have been appointed and therefore she should be made whole, or alternatively, that the compensation awards were excessive in light of the size of the estate. In attempting to accord substantial justice under the law to all parties on this appeal, we must deviate somewhat from the briefs and direct our gaze at the full factual and legal posture of this case in light of the relevant authority and the fundamental concepts of equity. The issues are quite basic. They resolve themselves into two questions: 1. In light of our former remand in this case (striking from consideration of the district judge the property of the ward relating to her % interest in Strayer’s Business College, Inc.) did Judge Gasch properly appoint a conservator of the “property” left after said striking ? 2. Was the trial judge on solid legal and equitable ground in awarding, as fees, the total amount of property in the conservator’s possession ? Although the trial judge indicated compliance with our direction not to base any appointment upon consideration of the Strayer’s stock, the language of his memorandum of reconsideration in light of remand seems to indicate that this property was relied upon at least to the extent of being a well from which to draw compensation for the appointees. We point out, however, that the statute specifies no minimum amount of property necessary for appointment of a conservator. It is reasonable to assume, therefore, that where there is any property in the District of Columbia, the appointment of a conservator is left up to the discretion of the trial judge. Here Judge Gasch viewed the order of this court upon remand and concluded that the appointment of a permanent conservator was proper. Even to the exclusion of the Strayer’s stock there was “property” in the District and we see no apparent abuse of discretion. It may be that Judge Gasch would have denied the petition in the first instance had he known then that Mrs. Mitchell had only $850 in the District. Here, however, where the initial appointments were based on colorable jurisdiction, it was perfectly proper for Judge Gasch to consider the services already performed at the time of the hearing on remand and to conclude, in retrospect, that the conservator was properly appointed. The alternative would have been to void all the proceedings ab initio. The resulting inequities to the guardian ad litem and the conservators are apparent. We proceed now to the question of the awarding of fees. The District Court awarded the guardian ad litem $2,382 for seventy hours of service. Mr. Las-key was paid $1,500 on account and, to date, has received no more. The temporary and permanent conservators were compensated out of the balance of the estate in the hands of the permanent conservator. This amount came to the figure of $445 for each. It is our duty to determine if these fees are excessive taking into account the statutes, case law and reason. The statute is silent on the question of compensation of guardians ad litem and conservators. The only helpful statutory language appears in 21 D.C.Code §§ 1503, 1504. Section 1503, dealing with the powers and duties of a conservator, states that he shall have the “same rights and powers with respect to the property of the person as have guardians of the estates of infants.” Section 1504, concerning discharge, states that the “court has the same powers with respect to the property of a person for whom a conservator has been appointed as it has with * * respect to the property of infants under guardianship.” Section 143 of Title 21 does provide for compensation for guardians of the property of infants. It reads “[t]he court shall allow a reasonable compensation for services rendered by the guardian not exceeding a commission of five per centum of the amounts collected, if and when disbursed.” 21 D.C.Code § 143 (1967). In In re Searle, 118 F.Supp. 273 (D.D.C.1953), the court relied on the predecessors of the above sections, holding that, since the guardianship statute “apparently was the paradigm and the pattern and guide out of which that dealing with conservators sprung, and since the duties of a conservator and a guardian are fundamentally and basically the same, I conclude that the compensation is thereby fixed accordingly.” In Searle, the court held that temporary conservators are to be compensated differently. They were to be awarded a reasonable fee in light of their services, the size of the estate, and the compensation previously awarded the guardian ad litem. Relying on Searle as authority to compensate these appointees, Judge Gasch bolstered his position by reference to an unjust enrichment concept in that the services of the men greatly increased the net worth of the stock of the ward. A marriage of the rationale of Judge Gasch and the policy behind Searle, in the absence of specific statutory guidance, indicates that the compensation to be awarded guardians ad litem and conservators must be based upon (1) the character of the services rendered, (2) the amount of time spent, (3) the size of the estate administered, and (4) the benefits that accrued to the estate as a result of the services. These criteria are limited only to the extent of reason». In determining the final disposition of this case on remand, several questions must be answered before compensation may be awarded. Although the guardian ad litem and both conservators submitted detailed statements concerning the services rendered and time spent, serious questions remain as to the size of the estate and the benefits that accrued. In addition to the $850 in the District originally, the conservators took possession of the two savings accounts and the second dividend check and were at least dealing in Mrs. Mitchell’s behalf with regard to her stock interest. The question is whether conservators appointed in the District of Columbia have the authority and power to take control of the ward’s property located elsewhere. The answer depends upon the law of both the District of Columbia and the jurisdiction in which the property is located. Upon that answer hinges the “size of the estate” for purposes of compensation in this case. First, although the D.C.Code does not make clear whether the conservator has authority to reach into other jurisdictions, the statutory intent apparently is that, once the jurisdictional basis has been established, the conservator may take control of as much of the ward’s estate as he is able. Nowhere does the statute explicitly limit the conservator to management of the property that forms the basis of his appointment. Indeed, he may be appointed solely on the basis of the ward’s residency, irrespective of any property actually located in the District. 21 D.C.Code § 1501, supra. Further, 21 D.C.Code § 1503 implies that the conservator may extend his reach beyond the borders of the District: [The conservator] shall have control of the estate, real and personal, of the person for whom he has been appointed conservator, with power to collect all debts due the person, and upon authority of the court to adjust and settle all accounts owing by him * * . (Emphasis added.) The only judicial statement on the matter lends further support to this conclusion. In Cooper v. Burton, 75 U.S.App.D.C. 298, 127 F.2d 741 (1942), the court implied, in dicta, that the conservator may take control of property outside the District provided there is personal jurisdiction over the incompetent. However, authority under the D.C.Code cannot itself give the conservator the power to assert control over property in other jurisdictions. As stated by the Supreme Court, “a guardian appointed by the courts of one State has no authority over the ward’s person or property in another State, except so far as allowed by the comity of that State * Lamar v. Micou, 112 U.S. 452, 470, 5 S.Ct. 221, 28 L.Ed. 751 (1884); accord, Hoyt v. Sprague, 103 U.S. 613, 631, 26 L.Ed. 585 (1880). Most states do accord such comity, especially where the state of appointment is the ward’s domicile. See Lamar v. Micou, supra at 470. The law of Maryland does not make clear whether a foreign conservator appointed for a Maryland domiciliary will be accorded the necessary comity, though it does quite clearly extend such to a foreign conservator appointed for one who is not a domiciliary of Maryland. See Art. 16, § 148, Md.Ann.Code and Md. Rules of Proc. rule 179. In addition, a foreign conservator has general authority, without complying with local law, to receive money or property located in another state where it is paid or delivered voluntarily. Volpe v. Emigrant Indus. Sav. Bank, 277 App.Div. 543, 101 N.Y.S.2d 82 (1950), aff’d, 303 N.Y. 704, 103 N.E.2d 61 (1951). Applying these principles to the present case, the record suggests that the bank accounts and second dividend check were delivered to the conservator voluntarily. If this is so, they are legitimately part of the estate. The record shows that the conservators had dealings in Mrs. Mitchell’s behalf with regard to her stock interest, but it is not clear to what extent they actually assumed, or had the power to assume, control over the stock. Proper determination of the size of the estate therefore requires that the record be supplemented. The record manifests uncertainty concerning whether the services of the guardian and the conservators actually inured to the benefit of Mrs. Mitchell. There is some suggestion that the value of her stock interest was enhanced by some $150,000, though this is sharply disputed by Mrs. Mitchell’s attorneys. From all the record shows, the stock may well have increased in value regardless of the efforts of the conservators. Since the question of benefits is central to a determination of compensation, the record needs to be supplemented by specific findings of fact on this point. We have carefully considered the other points raised by appellant and find them lacking in merit. Accordingly, we reverse the decision of the trial court in each of these cases and remand to that court for a determination as to (1) the benefits that accrued to the estate of the ward as a result of the services of the guardian ad litem and the conservators, and (2) the extent to which the conservators assumed control of the stock interest. Upon such findings the court is directed to proceed in accordance with this opinion toward final disposition of this case. Reversed and remanded. . 21 D.C.Code § 1501 provides in pertinent part: When an adult residing in or having property in the District of Columbia is unable, by reason of advanced age, mental weakness not amounting to unsoundness of mind, mental Illness, as the latter term is defined by section 21-501, or physical incapacity, properly to care for his property, the United States District Court for the District of Columbia may, upon his petition or the sworn petition of one or more of his relatives or any other person * * * appoint a fit person to be conservator of his property. . We arrive at this figure by looking to the property in the District at the time of the initial appointments, less the Strayer’s stock interest and less the $1,200 bank account, the situs of which, as a debt, was in Mrs. Mitchell’s domicile, Maryland. See Railroad Co. v. Pennsylvania, 82 U.S. (15 Wall.) 300, 320, 21 L.Ed. 179 (1872). . Cf. Bakery & Confectionery Workers Int’l Union of America v. Ratner, 118 U.S.App.D.C. 269, 335 F.2d 691 (1964); Ratner v. Bakery & Confectionery Workers Int’l Union of America, 122 U.S.App.D.C. 372, 354 F.2d 504 (1965); Schmidt v. McCarthy, 125 U.S.App.D.C. 131. 369 F.2d 176 (1966); Freeman v. Ryan, 133 U.S.App.D.C. 1, 408 F.2d 1204 (Oct. 16, 1968). These casies, taken together, establish similar standards for compensation of attorneys whose efforts help produce a fund for the benefit of a class. . Although we decline to adopt a frozen figure of 5%, we see no reason to preclude its use as a flexible rule-of-thumb for fixing reasonable compensation in ordinary cases. Question: Are there two issues in the case? A. no B. yes Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. ABDUL-KABIR, fka COLE v. QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION No. 05-11284. Argued January 17, 2007 Decided April 25, 2007 Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scaua, Thomas, and Altto, JJ., joined, post, p. 265. Scaua, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Auto, J., joined as to Part I, post, p. 280. Robert C. Owen, by appointment of the Court, 549 U. S. 1029, argued the cause for petitioner. With him on the briefs were Jordan M. Steiker and Raoul D. Schonemann. Edward L. Marshall, Assistant Attorney General of Texas, argued the cause for respondent. With him on the briefs were Greg Abbott, Attorney General, Kent C. Sullivan, First Assistant Attorney General, Eric J. R. Nichols, Deputy Attorney General, and Gena Bunn and Carla E. Eldred, Assistant Attorneys General. Briefs of amici curiae urging reversal were filed for the American Academy of Child and Adolescent Psychiatry et al. by James W. Ellis, April Land, and Stephen K. Harper; and for the Child Welfare League of America et al. by Jeffrey J. Pokorak, Marsha Levick, and Pamela Harris. [This opinion applies also to No. 05-11287, Brewer v. Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division, post, p. 286.] [This opinion applies also to No. 05-11287, Brewer v. Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division, post, p. 286.] Justice Stevens delivered the opinion of the Court. Petitioner Jalil Abdul-Kabir, formerly known as Ted Calvin Cole, contends that there is a reasonable likelihood that the trial judge’s instructions to the Texas jury that sentenced him to death prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence. He further contends that the judgment of the Texas Court of Criminal Appeals (CCA) denying his application for postconviction relief on November 24, 1999, misapplied the law as clearly established by earlier decisions of this Court, thereby warranting relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2254. We agree with both contentions. Although the relevant state-court judgment for purposes of our review under AEDPA is that adjudicating the merits of Cole’s state habeas application, in which these claims were properly raised, we are persuaded that the same result would be dictated by those cases decided before the state trial court entered its judgment affirming Cole’s death sentence on September 26, 1990. Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. I In December 1987, Cole, his stepbrother Michael Hickey, and Michael’s wife, Kelly, decided to rob and kill Kelly’s grandfather, Raymond Richardson, to obtain some cash. Two days later they did so. Cole strangled Richardson with a dog leash; the group then searched the house and found $20 that they used to purchase beer and food. The next day, Michael and Kelly surrendered to the police and confessed. The police then arrested Cole who also confessed. Cole was tried by a jury and convicted of capital murder. After a sentencing hearing, the jury was asked to answer two special issues:. “Was the conduct of the defendant, TED CALVIN COLE, that caused the death of the deceased, RAYMOND C. RICHARDSON, committed deliberately and with the reasonable expectation that the death of the deceased or another would result? “Is there a probability that the defendant, TED CALVIN COLE, would commit criminal acts of violence that would constitute a continuing threat to society?” App. 127,128. The trial judge instructed the jury to take into consideration evidence presented at the guilt phase as well as the sentencing phase of the trial but made no reference to mitigating evidence. Under the provisions of the Texas criminal code, the jury’s affirmative answers to these two special issues required the judge to impose a death sentence. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 2006). At the sentencing hearing, the State introduced evidence that Cole pleaded guilty to an earlier murder when he was only 16. Shortly after being released on parole, Cole pleaded guilty to charges of aggravated sexual assault on two boys and was sentenced to 15 more years in prison. As evidence of Cole’s propensity for future dangerousness, the State introduced Cole’s diary which, according to the State’s expert psychiatrist, Dr. Richard Coons, revealed a compulsive attraction to young boys and an obsession with criminal activity. Dr. Coons described Cole as a sociopath who lacked remorse and would not profit or learn from his experiences. In response, Cole presented two categories of mitigating evidence. The first consisted of testimony from his mother and his aunt, who described his unhappy childhood. Cole’s parents lived together “off and on” for 10 years, over the course of which they had two children, Cole, and his younger sister, Carla. App. 35. Shortly after Cole was born, his father was arrested for robbing a liquor store. Cole’s father deserted the family several times, abandoning the family completely before Cole was five years old. On the last occasion that Cole saw his father, he dropped Cole off a block from where he thought Cole’s mother lived, told Cole to “go find her,” and drove off. Id., at 42. Cole had no contact with his father during the next 10 years. Ibid. After Cole’s father left, his mother found herself unable to care for Cole and his sister and took the children to live with her parents in Oklahoma. Cole’s grandparents were both alcoholics — Cole’s mother was herself a self-described “drunk”— and lived miles away from other children. Eventually, because Cole’s grandparents did not want their daughter or her children living with them, Cole’s mother placed him in a church-run children’s home, although she kept her daughter with her. Over the next five years Cole’s mother visited him only twice. Cole’s aunt, who visited him on holidays, testified that Cole seemed incapable of expressing any emotion and that his father never visited him at all. The second category of mitigating evidence came from two expert witnesses — a psychologist and the former chief mental health officer for the Texas Department of Corrections— who discussed the consequences of Cole’s childhood neglect and abandonment. Dr. Jarvis Wright, the psychologist, spent 8 to 10 hours interviewing Cole and administering an “extensive battery of psychological tests.” Id., at 63. He testified that Cole had “real problems with impulse control” apparently resulting from “central nervous damage” combined with “all the other factors of [his] background.” Id., at 69. He also testified that Cole had likely been depressed for much of his life, that he had a “painful” background, and that he had “never felt loved and worthwhile in his life.” Id., at 73,86. Providing an analogy for Cole’s early development, Dr. Wright stated that “the manufacturing process [had] botched the raw material horribly.” Id., at 73. When specifically asked about future dangerousness, Dr. Wright acknowledged that “if Ted were released today on the street, there’s a much greater probability of dangerous behavior than with the rest of us.” Id., at 74. Although he acknowledged the possibility of change or “burn out,” he admitted that Cole would likely pose a threat of future dangerousness until “years from now.” Ibid. Except for his prediction that Cole would change as he grew older, Dr. Wright’s testimony did not contradict the State’s claim that Cole was a dangerous person, but instead sought to provide an explanation for his behavior that might reduce his moral culpability. Dr. Wendell Dickerson, a psychologist who had not previously examined Cole, observed that it was difficult to predict future dangerousness, but that “violent conduct is predominantly, overwhelmingly the province of the young” with the risk of violence becoming rare as people grow older. Id., at 95. On cross-examination, in response to a hypothetical question about a person with Cole’s character and history, Dr. Dickerson acknowledged that he would be “alarmed” about the future conduct of such a person because “yes, there absolutely is a probability that they would commit... future acts of violence.” Id., at 113. In sum, the strength of Cole’s mitigating evidence was not its potential to contest his immediate dangerousness, to which end the experts’ testimony was at least as harmful as it was helpful. Instead, its strength was its tendency to prove that his violent propensities were caused by factors beyond his control — namely, neurological damage and childhood neglect and abandonment. It was these latter considerations, however, that the prosecutor discouraged jurors from taking into account when formulating their answers to the special issues. During the voir dire, the prosecutor advised the jurors that they had a duty to answer the special issues based on the facts, and the extent to which such facts objectively supported findings of deliberateness and future dangerousness, rather than their views about what might be an appropriate punishment for this particular defendant. For example, juror Beeson was asked: “[I]f a person had a bad upbringing, but looking at those special issues, you felt that they [sic] met the standards regarding deliberateness and being a continuing threat to society, could you still vote ‘yes,’ even though you felt like maybe they’d [sic] had a rough time as a kid? If you felt that the facts brought to you by the prosecution warranted a ‘yes’ answer, could you put that out of your mind and just go by the facts? “[T]hat would not keep you from answering ‘yes,’ just because a person had a poor upbringing, would it?” XI Voir Dire Statement of Facts filed in No. CR88-G043-A (Dist. Ct. Tom Green Cty., Tex., 51st Jud. Dist.), p. 1588. The prosecutor began his final closing argument with a reminder to the jury that during the voir dire they had “promised the State that, if it met its burden of proof,” they would answer “yes” to both special issues. App. 145. The trial judge refused to give any of several instructions requested by Cole that would have authorized a negative answer to either of the special issues on the basis of “any evidence which, in [the jury’s] opinion, mitigate[d] against the imposition of the Death Penalty, including any aspect of the Defendant’s character or record.” Id., at 115; see also id., at 117-124. Ultimately, the jurors answered both issues in the affirmative, and Cole was sentenced to death. On direct appeal, the sole issue raised by Cole was that the evidence was insufficient to support the jury’s verdict. The CCA rejected Cole’s claim and affirmed the judgment of the trial court on September 26,1990. 11 On March 2, 1992, the lawyer who then represented Cole filed an application for a writ of habeas corpus in the Texas trial court, alleging 21 claims of error. Counsel later withdrew, and after delays caused in part by a letter from Cole to the trial judge stating that he wished to withdraw his “appeal,” the judge ultimately “had petitioner bench warranted” to a hearing on September 4,1998. Id., at 152-153. During that hearing, Cole advised the court that he wished to proceed with his habeas proceedings and to have the CCA appoint counsel to represent him. Without counsel having been appointed to represent Cole, and without conducting an evidentiary hearing, the trial court entered its findings and conclusions recommending denial of the application. Three of Cole’s 21 claims related to the jury’s inability to consider mitigating evidence. The trial judge rejected the first — “that his mitigating evidence was not able to be properly considered and given effect by the jury under the special issues,” id., at 157 — because he concluded that the record, and “especially” the testimony of the two expert witnesses, “provide[d] a basis for the jury to sufficiently consider the mitigating evidence offered by petitioner,” id., at 161. With respect to Cole’s second claim, the judge agreed that appellate counsel had been ineffective for failing to assign error based on “the trial court’s failure to instruct the jury on mitigating evidence as contemplated by the Pendry [sic] decision.” Id., at 166. He nevertheless found that the result on appeal would have been the same had the point been raised. Ibid. On the third claim relating to mitigating evidence, the judge rejected Cole’s argument that the trial court’s failure to specifically instruct the jury to consider mitigating evidence and offer a definition of “mitigating” was error. Id., at 173. Over the dissent of two members of the court, and after adopting the trial court’s findings of fact and conclusions of law with only minor changes, the CCA denied Cole’s application for state collateral relief. Ex parte Cole, No. 41,673-01 (Nov. 24, 1999) (per curiam), App. 178-179. Ill After the Federal District Court granted Cole’s motion for the appointment of counsel, he filed a timely petition for a federal writ of habeas corpus pursuant to 28 U. S. C. § 2254. His principal claim then, as it is now, was that the sentencing jury “was unable to consider and give effect to the mitigating evidence in his case,” in violation of the Constitution. Cole v. Johnson, Civ. Action No. 6:00-CV-014-C (ND Tex., Mar. 6, 2001), p. 5, App. 184. In its opinion denying relief, the District Court began by summarizing Cole’s mitigating evidence, highlighting his “destructive family background.” Ibid. The court then correctly described our decision in Penry I, 492 U. S. 302 (1989), in these words: “In [Penry] the Supreme Court found that when the defendant places mitigating evidence before the jury, Texas juries must be given instructions which allow the jury to give effect to that mitigating evidence and to express its reasoned moral response to that evidence in determining whether to impose the death penalty.” Civ. Action No. 6:00-CV-014-C, at 8-9, App. 188. The court next noted that the Fifth Circuit had formulated its own analysis for evaluating Penry claims. Under that analysis, for mitigating evidence to be constitutionally relevant, it “must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own,... and (2) that the criminal act was attributable to this severe permanent condition” Civ. Action No. 6:00— CV-014-C, at 9, App. 189 (quoting Davis v. Scott, 51 F. 3d 457, 460-461 (CA5 1995); internal quotation marks omitted; emphasis added). Ultimately, Cole’s inability to show a “nexus” between his troubled family background and his commission of capital murder doomed his Penry claim. Civ. Action No. 6:00-CV-014-C, at 13, App. 193. The Court of Appeals denied Cole’s application for a certificate of appealability (COA), Cole v. Dretke, 99 Fed. Appx. 523 (CA5 2004), holding that “reasonable jurists would not debate the district court’s conclusion that Cole’s evidence was not constitutionally relevant mitigating evidence,” Cole v. Dretke, 418 F. 3d 494,498 (CA5 2005). Shortly thereafter, however, we held that the Fifth Circuit’s “screening test” for determining the “‘constitutional relevance’” of mitigating evidence had “no foundation in the decisions of this Court.” Tennard v. Dretke, 542 U. S. 274, 284 (2004). Accordingly, we vacated its order denying a COA in this case and remanded for further proceedings. Abdul-Kabir v. Dretke, 543 U. S. 985 (2004). On remand, the Court of Appeals reviewed Cole’s Penry claim on the merits and affirmed the District Court’s judgment denying the writ. Focusing primarily on the testimony of petitioner’s two experts rather than that of his mother and his aunt, the Court of Appeals reviewed our recent decisions and concluded “that the Texas special issues allowed the jury to give ‘full consideration and full effect’ to the mitigating evidence that Cole presented at the punishment phase of his trial.” 418 F. 3d, at 511. With two judges dissenting, the court denied the petition for rehearing en banc. We consolidated this case with Brewer v. Quarterman, post, p. 286, and granted certiorari, 549 U. S. 974 (2006). IV Because Cole filed his federal habeas petition after the effective date of AEDPA, the provisions of that Act govern the scope of our review. We must therefore ask whether the CCA’s adjudication of Cole’s claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). We conclude that it did. A careful review of our jurisprudence in this area makes clear that well before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. Three of the five cases decided on the same day in 1976 — Woodson v. North Carolina, 428 U. S. 280, Proffitt v. Florida, 428 U. S. 242, and Jurek v. Texas, 428 U. S. 262 — identified the background principles we would apply in later cases to evaluate specific rules inhibiting the jury’s ability to give meaningful effect to such mitigating evidence. In Woodson v. North Carolina, we invalidated a statute that made death the mandatory sentence for all persons convicted of first-degree murder. One of the statute’s constitutional shortcomings was its “failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” 428 U. S., at 303 (plurality opinion). In Proffitt v. Florida and Jurek v. Texas, the joint opinions rejected facial challenges to the sentencing statutes enacted in Florida and Texas, assuming in both cases that provisions allowing for the unrestricted admissibility of mitigating evidence would ensure that a sentencing jury had adequate guidance in performing its sentencing function. As a majority of the Court later acknowledged, our holding in Jurek did not preclude the possibility that the Texas sentencing statute might be found unconstitutional as applied in a particular case. See n. 15, infra. Two years later, in Lockett v. Ohio, 438 U. S. 586 (1978), a plurality concluded “that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id., at 604 (footnote omitted). Because Ohio’s death penalty statute was inconsistent with this principle, it was declared unconstitutional. The plurality noted the possible tension between a holding that the Ohio statute was invalid and our decisions in Proffitt and Jurek upholding the Florida and Texas statutes, but distinguished those cases because neither statute “clearly operated at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.” 438 U. S., at 607. While Chief Justice Burger’s opinion in Lockett was joined by only three other Justices, the rule it announced was endorsed and broadened in our subsequent decisions in Ed-dings v. Oklahoma, 455 U. S. 104 (1982), and Skipper v. South Carolina, 476 U. S. 1 (1986). In those cases, we emphasized the severity of imposing a death sentence and that “the sentencer in capital cases must be permitted to consider any relevant mitigating factor.” Eddings, 455 U. S., at 112 (emphasis added). In the wake of our decision in Lockett, Ohio amended its capital sentencing statute to give effect to Lockett's holding. Neither Florida nor Texas did so, however, until after our unanimous decision in Hitchcock v. Dugger, 481 U. S. 393 (1987), unequivocally confirmed the settled quality of the Lockett rule. As Justice Scalia’s opinion for the Court explained, the defendant had introduced some rather atypical mitigating evidence that was not expressly authorized by the Florida statute: “In the sentencing phase of this case, petitioner’s counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers.” 481 U. S., at 397. As the opinion further explained, the Florida courts had construed the state statute to preclude consideration of mitigating factors unmentioned in the statute. Accordingly, despite our earlier decision in Proffitt upholding the statute against a facial challenge, it was necessary to set aside Hitchcock’s death sentence. We explained: “We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant’s troubled family history and emotional disturbance).” 481 U. S., at 398-399. Of course, our reference to “exclusion” of the evidence did not refer to its admissibility, but rather to its exclusion from meaningful consideration by the jury. Had Jurek and Proffitt truly stood for the proposition that the mere availability of relevant mitigating evidence was sufficient to satisfy the Constitution’s requirements, Hitchcock could never have been decided as it was. In the year following our decision in Hitchcock, we made clear that sentencing under the Texas statute, like that under the Florida statute, must accord with the Lockett rule. In Franklin v. Lynaugh, 487 U. S. 164, 172, 177, 183 (1988), the plurality rejected the claim that the judge’s instructions did not allow the jury to give adequate weight to whatever “ ‘residual doubts’ ” it may have had concerning the defendant’s guilt, or to evidence of the petitioner’s good behavior while in prison. That particular holding is unremarkable because we have never held that capital defendants have an Eighth Amendment right to present “residual doubt” evidence at sentencing, see Oregon v. Guzek, 546 U. S. 517, 523-527 (2006), and in most cases evidence of good behavior in prison is primarily, if not exclusively, relevant to the issue of future dangerousness. What makes Franklin significant, however, is the separate opinion of Justice O’Connor, and particularly those portions of her opinion expressing the views of five Justices, see infra, at 253, and n. 15. After summarizing the cases that clarified Jurek’s holding, she wrote: “In my view, the principle underlying Lockett, Ed-dings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant. “ ‘[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.... Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant’s background, character, and crime.’ California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring) (emphasis in original). “In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant’s background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration. “Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant’s future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence.” 487 U. S., at 184-185 (opinion concurring in judgment) (emphasis added). Justice O’Connor’s opinion for the Court in Penry I endorsed the views she had expressed in Franklin and unquestionably governs the facts of this ease. Penry contended that his mitigating evidence of mental retardation and an abusive childhood provided a basis for a sentence of life imprisonment rather than death and that the jury should have been instructed that it could consider that evidence when making its sentencing decision. In response to that contention, our opinion first held that Penry was not asking us to make new law because he was relying on a rule that was “dictated” by earlier cases, see n. 10, supra, and explained why Justice O’Connor’s separate opinion in Franklin correctly defined the relevant rule of law. In Franklin, we noted, “both the concurrence and the dissent stressed that ‘the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration’ in imposing sentence.” 492 U. S., at 321 (citing Franklin, 487 U. S., at 185 (O’Connor, J., concurring in judgment); id., at 199 (Stevens, J., dissenting)). Applying that standard, we held that neither the “deliberateness” nor the “future dangerousness” special issue provided the jury with a meaningful opportunity to give effect to Penry’s mitigating evidence. With respect to the former, we explained: “In the absence of jury instructions defining ‘deliberately’ in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry’s mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry’s retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime ‘deliberately.’ Thus, we cannot be sure that the jury’s answer to the first special issue reflected a ‘reasoned moral response’ to Penry’s mitigating evidence.” 492 U. S., at 323. With respect to the future dangerousness issue, we emphasized the fact that Penry’s evidence of mental retardation was relevant only as an aggravating factor. Id., at 323-324. More broadly, we noted that the evidence of Penry’s mental retardation and childhood abuse functioned as a “two-edged sword,” because it “may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.” Id., at 324. We therefore held that, in the absence of an appropriate instruction directing the “jury to consider fully” mitigating evidence as it bears on the extent to which a defendant is undeserving of a death sentence, “we cannot be sure” that it did so. Id., at 323. As our discussion of the deliberateness issue demonstrates, we did not limit our holding in Penry I to mitigating evidence that can only be viewed as aggravating. When the evidence proffered is double edged, or is as likely to be viewed as aggravating as it is as mitigating, the statute most obviously fails to provide for adequate consideration of such evidence. The former special issues (as composed at the time of both Penry’s and Cole’s sentencing proceedings) provided an adequate vehicle for the evaluation of mitigating evidence offered to disprove deliberateness or future dangerousness. As Judge Reavley noted in his opinion for the Court of Appeals in Penry I, however, they did not tell the jury as to what “to do if it decided that Penry, because of retardation, arrested emotional development and a troubled youth, should not be executed.” Id., at 324 (internal quotation marks omitted). V In recommending denial of Cole’s application for collateral relief, the Texas trial judge did not analyze Penry I itself. Under the framework set forth in Penry I, the testimony of Cole’s mother and aunt, as well as the portions of the expert testimony suggesting that his dangerous character may have been the result of his rough childhood and possible neurological damage, were not relevant to either of the special^ verdiet questions, except, possibly, as evidence supporting the State’s argument that Cole would be dangerous in the future. This would not satisfy the requirement of Penry I, however, that the evidence be permitted its mitigating force beyond the scope of the special issues. Therefore, it would have followed that those questions failed to provide the jury with a vehicle for expressing its “reasoned moral response” to that evidence. Instead of relying on Penry I, the trial judge relied on three later Texas cases and on our opinion in Graham v. Collins, 506 U. S. 461 (1993), as having held that nine different categories of mitigating evidence — including a tioubled family background, bipolar disorder, low IQ, substance abuse, paranoid personality disorder, and child abuse — were sufficiently considered under the Texas special issues. App. 159-160. Applying those cases, the judge defined the legal issue “whether the mitigating evidence can be sufficiently considered” as one that “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” Id., at 160. As we have noted, in endorsing this formulation of the issue, neither the trial judge nor the CCA had the benefit of any input from counsel representing petitioner. See Part II, supra. In our view, denying relief on the basis of that formulation of the issue, while ignoring the fundamental principles established by our most relevant precedents, resulted in a decision that was both “contrary to” and “involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d). The state court’s primary reliance on Graham, to the exclusion of our other cases in this line of jurisprudence, was misguided. In Graham, we held that granting collateral relief to a defendant who had been sentenced to death in 1984 would require the announcement of a new rule of constitutional law in contravention of Teague v. Lane, 489 U. S. 288 (1989). In reaching that conclusion we relied heavily on the fact that in 1984 it was reasonable for judges to rely on the interpretation of Jurek that the plurality had espoused in Franklin. See 506 U. S., at 468-472; see also n. 15, supra. But as we have explained, in both Franklin and Penry I, a majority of the Court ultimately rejected the plurality’s interpretation of Jurek. Neither Franklin nor Penry I was inconsistent with Graham's narrow holding, but they do suggest that our later decisions — including Johnson v. Texas, 509 U. S. 350 (1993), in which we refused to adopt the rule that Graham sought — are of more relevance to Cole’s case than Graham. The relevance of those cases lies not in their results — in several instances, we concluded, after applying the relevant law, that the special issues provided for adequate consideration of the defendant’s mitigating evidence — but in their failure to disturb the basic legal principle that continues to govern such cases: The jury must have a “meaningful basis to consider the relevant mitigating qualities” of the defendant’s proffered evidence. Johnson, 509 U. S., at 869; see also Graham, 506 U. S., at 474 (explaining that Penry was entitled to additional instructions “[b]eeause it was impossible [for the jury] to give meaningful mitigating effect to Penry’s evidence by way of answering the special issues”). Before turning to those more recent cases, it is appropriate to identify the reasons why the CCA’s ruling was not a reasonable application of Penry I itself. First, the ruling ignored the fact that even though Cole’s mitigating evidence may not have been as persuasive as Penry’s, it was relevant to the question of Cole’s moral culpability for precisely the same reason as Penry’s. Like Penry’s evidence, Cole’s evidence of childhood deprivation and lack of self-control did not rebut either deliberateness or future dangerous Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appel1_7_4	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion. Virginia HECTOR, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICES, Respondent. No. 85-3113. United States Court of Appeals, Third Circuit. Submitted Rule 12(6) Nov. 17, 1986. Decided Jan. 28, 1987. David Iverson, Charlotte Amalie, St. Thomas, U.S. V.I., for petitioner. Alexander Ewing, Jr., Asst. U.S. Atty., Philadelphia, Pa., Richard K. Willard, Acting Asst. Atty. Gen., Civ. Div., James A. Hunolt, Asst. Director, Eileen A. Carty, U.S. Dept, of Justice, Civ. Div., Office of Immigration Litigation, Washington, D.C., for respondent. Before BECKER, Circuit Judge, HUNTER and GARTH, Senior Circuit Judges. OPINION OF THE COURT SUR REMAND FROM THE UNITED STATES SUPREME COURT PER CURIAM. Virginia Hector, a native and citizen of Dominica, West Indies, entered the United States in April 1975 as a nonimmigrant visitor for pleasure. She has remained in this country illegally since April 30, 1975, when her authorization expired. In 1983, two of Hector’s nieces, United States citizens aged 10 and 11, came to live with her to attend school in what their parents perceived to be a superior educational system. The Immigration and Naturalization Service instituted deportation proceedings against Hector in July 1983. She conceded deportability, but applied for suspension of deportation pursuant to § 244(a)(1) of the Immigration and Naturalization Act (Act), 8 U.S.C. § 1254(a)(1) on the ground that her nieces would suffer extreme hardship as a result of her deportation. An Immigration Judge and the Board of Immigration Appeals (Board) found that Hector satisfied the first two elements of the statute — continuous physical residence and good moral character — but that she could not demonstrate extreme hardship to herself, or to her “spouse, parent, or child.” With respect to her nieces, the Board determined that, as a factual matter, Hector’s separation from them would not constitute extreme hardship to herself; as a legal matter, the Board concluded that a niece is not a “child” within the meaning of § 244(a)(1). The Immigration Judge found that the relationship between Hector and her niece was “not so emotionally intense nor of such longstanding duration [one year] as to supplant the childrens’ relation with their parents [who are alive and living in Dominica].” The judge refused to hear testimony which would have shown that, despite the short time that Hector and her nieces had lived together, a relationship of mother and child may have existed. On petition for review, in a not-for-publication memorandum opinion, a divided panel of this court (Garth, J., dissenting) granted Hector’s petition for review, holding that the Board had erred in not giving sufficient consideration to whether Hector’s relationship with her nieces was the functional equivalent of a parent-child relationship. We relied in this respect on To-var v. INS, 612 F.2d 794 (3d Cir.1980), where a panel of this court held that in a situation where a child was raised from infancy by his grandmother and considered his grandmother his mother, the grandparent-grandchild relationship “so closely resembled that of parent to child,” that § 244(a)(1) could properly be applied to suspend deportation. 612 F.2d at 797. In accordance with that holding we remanded the case, instructing the Board to ascertain whether a parental-type relationship existed between Hector and her nieces and, if so, to determine whether the nieces would experience extreme hardship as a result of Hector’s deportation. The Supreme Court, noting that the Courts of Appeals had reached varying conclusions on whether hardship to an alien’s relative or loved one who does not qualify under the statute’s technical definitions as a spouse, parent, or child, must be independently considered in assessing extreme hardship under § 244(a)(1), granted certiorari and reversed. — U.S.-, 107 S.Ct. 379, 93 L.Ed.2d 326 (1986). The Court found the language of the statute was plain, and held that the Board is not required under § 244(a)(1) to consider the hardship to a third party other than a spouse, parent, or child, as defined by the Act: Congress has specifically identified the relatives whose hardship is to be considered, and then set forth unusually detailed and unyielding provisions defining each class of included relatives. The statutory definition of the term “child” is particularly exhaustive. Hector has never claimed, and the Court of Appeals did not hold, that the two nieces qualify under that statutory definition____ Thus, even if Hector’s relationship with her nieces closely resembles a parent-child relationship, we are constrained to hold that Congress, through the plain language of the statute, precluded this functional approach to defining the term “child.” Cf. INS. v. Phinpathya, 464 U.S. 183, 194, [104 S.Ct. 584, 591, 78 L.Ed.2d 401] (1984) (refusing to ignore “the clear congressional mandate and the plain meaning of the statute” where it was clear the “Congress considered the harsh consequences of its actions”). Congress has shown its willingness to redefine the term “child” on a number of occasions, but it has not included nieces in that definition or authorized us to adopt a functional definition. (Footnotes omitted). 107 S.Ct. at 381-3. In view of the Supreme Court’s instruction we must now read § 244(a)(1) precisely as it is written, and therefore must limit its reach only to those relationships identified. We are further obliged to state that to the extent that Tovar v. INS, 612 F.2d 794 (3d Cir.1980) is inconsistent with the Supreme Court’s per curiam decision, it necessarily is overruled. For the foregoing reasons, our prior opinion and judgment will be vacated and the petition for review will be denied. . That section authorizes the Attorney General, in his discretion, to suspend deportation of an illegal alien, and to adjust the alien’s status to that of an alien lawfully admitted for permanent residence, if the deportable alien “has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of ... application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1254(a)(1). . We observe however that the Supreme Court has left open the possibility that, in the event Hector qualifies, she may be entitled to relief under the amnesty provisions of the newly-enacted Immigration and Control Act of 1986. Our instant opinion would not affect such relief. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion? A. not ascertained B. US citizen C. alien 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". DONNELLY GARMENT CO. et al. v. DUBINSKY et al. SMITH et al. v. SAME. Nos. 13019, 13020. Circuit Court of Appeals, Eighth Circuit. March 11, 1946. William S. Hogsett, of Kansas City, Mo. (R. J. Ingraham, Burr S. Stottle, and Reed,, Ingraham & Milligan, all of Kansas City, Mo., on the brief), for appellants, Donnelly Garment Co. and Donnelly Garment Sales Co. Frank E. Tyler, of Kansas City, Mo. (Raymond E. Draper and Vera Jones, both of Kansas City, Mo., on the brief), for intervener appellants Lorraine Smith et al. Charles A. Horsky, of Washington, D. C., and Emil Schlesinger, of New York City (Clif. Langsdale, of Kansas City, Mo., and Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., on the brief), for appellees. Before GARDNER, THOMAS, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. This is an action for an injunction in a labor dispute in which jurisdiction of the Federal courts is narrowly circumscribed by the Norris-LaGuardia Act. 29 U.S.C.A., § 101 et seq. See United States v. Hutcheson, 312 U.S. 219, 234-236, 61 S.Ct. 463, 85 L.Ed. 788; Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., 311 U.S. 91, 101, 102, 61 S.Ct. 122, 85 L.Ed. 63; International Association of Bridge, Structural & Ornamental Iron Workers v. Pauly Jail Building Co., 8 Cir., 118 F.2d 615, 616, 617. The labor dispute out of which this action arose began in 1934, and from that time to the present has resulted in almost continuous proceedings before the National Labor Relations Board and in the Federal courts. The present action began in the Federal District Court for the Western District of Missouri in 1937. The history of its progress through the courts and the facts involved may be found in the opinion of the District Court from which this appeal comes (55 F.Supp. 587), in the opinions in the cases referred to by the District Court in the opinion mentioned, and in the opinions of this court in International Ladies’ Garment Workers’ Union v. Donnelly Garment Company, 147 F.2d 246, and in Donnelly Garment Company v. National Labor Relations Board, 151 F.2d 854. For present purposes it is enough to say that on its original appearance in the Federal District Court in 1937 the jurisdiction of the action was predicated solely upon the Sherman Act, 15 U.S.C.A. § 1 et seq. The plaintiffs and the interveners then were the same as they are now. The defendants were the International Ladies Garment Workers Union, the Kansas City Joint Board of the International, several of the International’s locals, a number of its officers in their official and individual capacities, and many of its members. The action came to trial on its merits in 1939, and in April of that year the District Court entered a decree enjoining the defendants from committing the acts of fraud and violence and from conducting the illegal secondary boycott with which the defendants in the present action are charged. On appeal to this court (International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 119 F.2d 892) the decree of the District Court was reversed on the ground that the acts charged against defendants did not constitute a restraint of trade within the meaning of the Sherman Act. This decision was later modified on motion of .plaintiffs and interveners so as to remand the case to the District Court with leave to plaintiffs and interveners to apply to that court to amend their pleadings to show jurisdiction based on diversity of citizenship and to dismiss the action as to resident defendants and the International Ladies Garment Workers Union (121 F.2d 561). On December 10, 1941, more than four years after the beginning of the litigation, the District Court granted the motion of plaintiffs and interveners to amend and to dismiss (47 F.Supp. 61), and the case proceeded to trial. A decree denying an injunction was entered by the trial court on May 22, 1944. Plaintiffs and interveners, aligned on the same side of the controversy, have appealed. In the action in its present form appellants are the Donnelly Garment Company and the Donnelly Sales Company, corporations domiciled in Kansas City, Missouri, and the interveners mentioned below. The Garment Company is a manufacturer of women’s dresses, and the Sales Company is engaged in the sale of the product of the Garment Company. Their business is nationwide. The appellees are individuals, residents of States other than Missouri. They are officers and members of the General Executive Board of the International Ladies Garment Workers Union and the editor of “Justice,” the official publication of the International. Lorraine Smith and others, members of the Executive Committee of the Donnelly Garment Workers Union, a labor organization composed of all employees of the Garment Company eligible to membership, intervene on behalf of themselves and all other employees of the Garment Company. Prior to the institution of this action the Donnelly Garment Workers Union entered into a contract with the Garment Company concerning wages, hours of labor, and conditions of employment which is still in force. Summarized, the charges against the appellees are: That they entered into a conspiracy among themselves and with others to compel the appellants, by violence, fraud, and illegal secondary boycott, and by threats of such unlawful acts, to accede to their demands that the Garment Company recognize the International as the sole bargaining agency of its employees, thus breaching the existing contract between the Garment Company and the employees’ union, and to compel the employees of the Garment Company to become members of the International against their will, in violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.; that the conspiracy is a continuing one; that in furtherance of the conspiracy appellees have been guilty of fraud and violence, and that, unless restrained, acts of fraud and violence will be committed to the irreparable damage of appellants; that appellants are without an adequate remedy at law; and that the public officers whose duty it is to protect the property of appellants from the threatened unlawful acts are unable or unwilling to furnish adequate protection. The appellees deny all allegations of the complaint. Violence and Threats of Violence. The sections of the Norris-LaGuardia Act controlling upon the question of the power of the District Court to enjoin the appellees on appellants’ allegations of violence and threats of violence are: “Sec. 6. Responsibility of officers and members of associations or their organizations for unlawful acts of individual officers, members, and agents. “No officer or member of any association or organization * * * shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” “Sec. 7. Issuance of injunctions in labor disputes; hearing; findings of court; notice to affected persons; temporary restraining order; undertakings. “No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute * * * except after findings of fact by the court, to the effect— “(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons * * * making the threat or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; ****** “(e) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection. * * ” The trial court found that the evidence was not sufficient to sustain the findings that a present conspiracy existed among the appellees or any of them to. unionize the Donnelly Garment factory in Kansas City by violence or threats of violence, and that the threats made in the .spring of 1937 by persons other than the appellees that violence would be employed against the appellants in the event a strike was called at the Donnelly Garment Company plant were neither authorized nor ratified by the appellees. Appellants vigorously assail these findings as contrary to all the evidence in the record. We do not reach the issue thus presented. For, granting for the argument that these findings of the trial court are clearly erroneous, appellants were nevertheless not entitled to an injunction on this issue, because of the failure of appellants to make the proof required by section 7(e) of the Norris-LaGuardia Act. The trial court made the following finding: “Plaintiffs and interveners have failed to show that the police force of Kansas City is either unable or unwilling to furnish adequate protection against any violence which might occur on the picket line or elsewhere if and when a strike occurs at Donnelly, or otherwise to protect plaintiffs’ employees who may not be in sympathy with any strike called by International. The experience in strikes in other cities and the fact that some or all of the strikers may be women does not justify a finding that the police force in Kansas City is unable to furnish protection against any violence which might occur.” No other finding could have been made by the trial court on the evidence in this record. A Federal District Court is without power to issue an injunction in an action growing out of a labor dispute in the absence of an allegation by the plaintiff and a finding by the court, supported by evidence, that local public officers are unable or uriwilling to furnish plaintiff adequate . protection against the violence or threat of violence against which the injunction is sought. International Brotherhood of Teamsters, etc., v. International Union, etc., 9 Cir., 106 F.2d 871, 877; Grace Co. v. Williams, 8 Cir., 96 F.2d 478, 481. The finding that local public officers are unable or unwilling to furnish adequate protection is only one of the several findings,' jurisdictional prerequisites for an order of injunction in .a labor dispute, required by section 7 of the Norris-La-Guardian Act. But all the findings required under the Act must be made. Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., supra 311 U.S. at pages 100-102, 61 S.Ct. 122, 85 L.Ed. 63; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 82 L.Ed. 872; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 561, 562, 304 U.S. 542, 58 S.Ct. 703, 82 L.Ed. 1012; Fur Workers Union, Local No. 72 v. Fur Workers Union, 70 App.D.C. 122, 105 F.2d 1, 5. In support of the necessary finding upon the issue under discussion, appellants rely wholly on proof of the failure of police officers in Dallas, Texas, and Memphis, Tennessee, in 1935, and of the police officers in Kansas City in 1937, to prevent actual violence of members and agents of the International against the manufacturers of women’s dresses in those cities in strikes then in progress pursuant to the program of the International for the organization of the women’s garment industry; and upon the testimony of a former member of the Kansas City police force, concerning the impossibility of controlling riotous mobs of women by police action. In 'discussing this evidence the trial judge' pointed out that no strike .had ever been called against the appellants, no act of violence committed against them, and no threat of violence made since 1937; that since the strikes in the garment industry in Kansas City in 1937, which were attended by outrageous acts of violence by striking members of the International, there had been a complete change in the local government in Kansas City and a complete reorganization of its police force; and that the Federal judge who granted appellants’ injunction in the action based on the Sherman Act found that the police of Kansas City were able but unwilling to prevent the violence which occurred in Kansas City in strikes in the women’s garment industry in 1937. We agree with the trial judge that the evidence of the character relied on by appellants was wholly insufficient to sustain the burden upon them. See Green v. Obergfell, 73 App.D.C. 298, 121 F.2d 46, 52, 138 A.L.R. 258; Wilson & Co. v. Birl, 3 Cir., 105 F.2d 948; Wilson Employees’ Representation Plan v. Wilson & Co., D.C.Cal., 53 F.Supp. 23; Heintz Mfg. Co. v. Local No. 515, D.C.Pa., 20 F.Supp. 116; Oswald Co. v. Leader et al., D.C.Pa., 20 F.Supp. 876; Cupples Co. v. American Federation of Labor, D.C.Mo., 20 F.Supp. 894; Carter v. Herrin Motor Freight Lines, 5 Cir., 131 F.2d 557; Knapp-Monarch v. Anderson, D.C.Ill., 7 F.Supp. 332. Compare Cater Construction Co. v. Nischwitz, 7 Cir., 111 F.2d 971; Newton v. Laclede Steel Co., 7 Cir., 80 F.2d 636; Lake Charles Stevedores v. Mayo, D.C.La., 20 F.Supp. 698. Although the appellants notified the sheriff of Jackson County, Missouri, in which Kansas City is located, and the chief officer of the Kansas City police force of the hearing on the application for injunction, they failed to call either of these officers to the witness stand in support of the allegation that the law enforcement officers then in office were either unable or unwilling to give appellants adequate protection against any acts of violence reasonably to be anticipated. The trial judge was denied the opportunity to ascertain from the testimony of these officers any opinion whatever as to their willingness or their ability to discharge the duties which the law placed upon them. The record is barren of any evidence upon which the trial court could have made the finding requisite to jurisdiction. Appellants offer no excuse for their failure to call these officers, presumably the. best informed of all possible witnesses, to the witness stand. Their failure justifies, if it does not compel, the inference that the testimony of the absent witnesses would have been against them. Goldie v. Cox, 8 Cir., 130 F.2d 695, 719. Fraud and Secondary Boycott. There is no proof in the record that any of the fraudulent acts or threats charged against the appellees, or any of the appellees’ actions relied on by appellants as threatening an illegal secondary boycott of the garment companies’ customers, were accompanied by violence or threats of violence. Appellants were, therefore, not under the burden in this branch of the action placed upon them by section 7(e) of the Norris-LaGuardia Act. See Wilson & Co. v. Birl, supra 105 F.2d at page 950. Appellants were, however, by section 7(a) of the Act required to prove, and the District Court was required to find, before an injunction against fraud or secondary boycott could issue, that acts constituting the offenses charged had been committed by appellees or their agents with appellees’ knowledge and would be continued, or that such acts had been threatened and would be committed unless restrained. The trial court found that no present conspiracy existed among the appellees to compel the appellants to yield to the demands of the International Ladies Garment Workers Union by means of fraud or thiough an illegal secondary boycott of the retail stores handling the product of the Donnelly Garment Company. We can not say that this finding of fact is clearly erroneous. On the question of fraud, the evidence clearly established that one of the appellees, Meyer Perlstein, while acting as regional director of the International in charge of its campaign for the organization of appellants, made false and malicious statements regarding the conditions prevailing in the Donnelly Company’s plant, and that he gave wide publicity to these falsehoods through advertisements published in the Kansas City papers and by distribution of printed circulars throughout the United States. Under Perlstein’s directions agents of the International were supplied with pamphlets containing the false statements invented by him and sent far and wide throughout the country with instructions to deliver them to retail stores which sold the product of the Donnelly Garment Company. These malicious falsehoods were given publicity under Perl-stein’s direction for the purpose of inducing the customers of Donnelly Garment Company to sever commercial relations with it, and thus to compel the Garment Company to accede to the demands of the International through fear of irreparable damage to its business. Appellees tacitly admit Perlstein’s guilt of these fraudulent acts. But this action was brought to trial in the District Court in 1943, and, under the provisions of the Norris-LaGuardia Act, the District Court was without jurisdiction to issue an injunction against fraud merely upon the finding that fraudulent acts had been committed by the appellees or any of them in the past. The court’s power to issue an injunction was dependent upon the further finding that unless restrained the fraudulent acts committed in the past would be continued in the future, and, as noted above, the District Court declined to make this necessary finding. The false representations referred to were made and given publicity by Perl-stein in 1937. Their falsity was completely exposed in December 1937 in one of the trials of the action brought by appellants under the Sherman Act. They were never again given publicity by advertisement in the press. There is some evidence to show that the circulars containing these false representations may have been distributed for a time in 1938 among retail stores selling the product of the Garment Company, but there is a sharp conflict in the evidence on the question whether the other appellees had knowledge of Perlstein’s action in making the false representations before they were made, or whether the other appellees ratified Perlstein’s action after knowledge. There is evidence on behalf of the appellees that, after the falsity of Perlstein’s statements concerning appellants was exposed in the trial court in 1937, another circular in which the fraudulent statements were not repeated was prepared by Perlstein and circulated among appellants’ customers, in substitution for the first circular. No charge of fraud is made in connection with the distribution of the second circular. Appellants contend, however, that the appellees discontinued the fraudulent acts charged against them only because compelled to do so by the institution of the action for an injunction. They point to the fact that none of the appellees took the stand at the trial to disavow the fraudulent actions of Perlstein or to give assurance that these actions would not be continued as soon as the restraining hand of the court was lifted. They rely upon the principle that once a conspiracy and its continuation until stopped by the institution of proceedings against it are proved, it must be deemed to continue until the contrary is established; and that the failure of any of the appellees to disavow on the witness stand the acts charged against them justifies the inference that the unlawful acts which brought about the action for an injunction will be continued ur'ess restrained. United States v. Perlstein, 3 Cir., 126 F.2d 789, 798; Local 167 of International Brotherhood of Teamsters v. United States, 291 U.S. 293, 298, 54 S.Ct. 396, 78 L.Ed. 804; Interstate Circuit v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 83 L.Ed. 610; Goldie v. Cox, supra. The infirmities in this argument are that appellants assume a conspiracy which the trial court found on substantial evidence did not exist; and that they ignore the finding of the trial court, supported by substantial evidence, that the unlawful acts of which they complain were discontinued upon the exposure of their falsity, and that the evidence failed to show any reasonable probability of their continuation. The injunction against fraud was properly denied. Champion Spark Plug Co. v. Reich, 8 Cir., 121 F.2d 769, 772. “When an injunction is brought to restrain a continuing injury .and, after suit is brought the defendant claims to have abandoned the course of conduct complained of, the question for the court to determine is whether the illegal conduct has in fact been abated or whether the menace to the plaintiff’s rights still exists. If the menace exists an injunction should be granted; if not, it should be denied. * * The question is one of fact for the determination of the court at the time the final decree is entered.” The issues arising out of the charge of threats of illegal boycott of the retail stores handling the product of the Donnelly Garment Company were, like the issues arising on the charge of fraud, decided by the trial court upon conflicting ■evidence. On the finding that none of the .appellees authorized the threats of a boycott of the Garment Company’s customers, which may have been made by certain emissaries and agents of the International, or ratified them after actual knowledge, the court concluded that, because of the provisions of section 4 of the Norris-LaGuardia Act, an injunction against the so-called secondary boycott should not issue. Section 4 of the Act provides that no court of the United States shall have jurisdiction to issue any restraining order or injunction in any case growing out of a labor dispute to prohibit any person or persons participating or interested in the dispute 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.” There was no suggestion in the evidence that any acts of violence were done or threatened by any of the emissaries of the International, who called upon the retail stores handling the products of the Garment Company and urged them to sever commercial relations with the Garment Company; and, as noted above, the court found that the fraudulent representations made by these emissaries of the International to the customers of the Donnelly Garment Company were discontinued after 1937 and that there was no probability of their continuancé. The questions on this branch of the case, therefore, are whether the court’s finding of fact was clearly erroneous, and, if not, whether its construction of section 4(e) of the Norris-LaGuardia Act was correct. There was evidence from the operators of retail stores who sold the women’s garments manufactured by the Donnelly Company that the emissaries of the International who called on them threatened the stores with boycott unless they discontinued the purchase and sale of the Donnelly Garment Company’s product. Some of the interviews given to the press by Mr. Dubinsky, president of the International, and probably by some of the other appellees, contain language susceptible of interpretation as a threat to boycott all the retail stores selling Donnelly garments. Some of the articles published in “Justice”, the official publication of the International, edited by one of the appellees, read by all of them, and widely circulated among the members of the International contain similar language. These articles, however, when read in their entirety were more reasonably to be interpreted as statements of a plan of the appellees responsible for them merely to urge the retail stores in question not to patronize the Donnelly Garment Company, to publicize the labor dispute out of which the action arose, and to urge the public not to purchase from the retail stores the garments manufactured by the Donnelly Company. While there were references in the publicity of the International to “picketing retail stores” which refused to discontinue commercial relations with the Donnelly Garment Company, the proof shows that such picketing as did occur was limited to the patrol of the entrances of a retail store in St. Louis by pickets who carried signs stating that the Donnelly Garment Company was unfair to union labor, and advising the customers of the store not to purchase garments manufactured by it. There was also testimony by the appellee Dubinsky that picketing of retail stores, as distinguished from the boycott of a product of any company which the International was attempting to organize, was contrary to the policy of the International and never in its history knowingly permitted. Emissaries of the International sent out by Perlstein denied that they threatened a boycott of the retailers they called on, as distinguished from the boycott of the products of the Donnelly Company by an appeal to the public not to purchase them. We conclude that the weight of the testimony supports the trial court’s finding of fact on this issue, and that the court correctly held that “A fair construction of this section (§ 4 (e)) of the Act indicates that Congress intended that the facts of a labor controversy might be given publicity by the patrolling of the streets or otherwise with banners and signs, and that such publicity might include or contain a request to the public not to buy the products of the factory where the labor dispute exists.” [55 F.Supp. 601] Taxi-Cab Drivers Local Union No. 889 v. Yellow Cab Operating Co., 10 Cir., 123 F.2d 262; Levering & Garrigues Co. v. Morrin, 2 Cir., 71 F.2d 284; Carter v. Herrin Motor Freight Lines, supra, 131 F.2d at page 560; Wilson & Co. v. Birl, supra. Here the appellants rely on Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196, and Bedford Cut Stone Co. v. Journeyman Stone Cutters’ Association, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L.R. 791, decisions which came down before the passage of the Norris-LaGuardia Act. We agree with the trial court that these opinions may not be accepted as law on the question now under discussion in view of the provisions of the Norris-LaGuardia Act. See United States v. Hutcheson, supra; Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., supra. In conclusion it may not be amiss to say that nothing in the Norris-LaGuardia Act denies to the Federal courts the power to issue an injunction in an action growing out of a labor dispute where the evidence clearly establishes the requisite jurisdictional findings. Fraud and violence are as unlawful and as reprehensible in a labor controversy as elsewhere. But in an action for an injunction in a labor dispute the trial court is required to make certain findings as a prerequisite to the power and jurisdiction of the court to grant an injunction. The burden is upon the plaintiff to establish the findings by clear evidence. Since we conclude that the trial court’s findings against the appellants in this case on issues necessary to its power and jurisdiction to enjoin the appellees are not clearly erroneous, the decree appealed from is affirmed. The testimony of Dubinsky and Perlstein in prior trials was, however, introduced in evidence on this trial. Note 1, supra. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genstand	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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". RUPP v. COMMERCE GUARDIAN TRUST & SAVINGS BANK. Circuit Court of Appeals, Sixth Circuit. April 5, 1929. No. 5097. Stuart S. Wall, of Toledo, Ohio (Denman, Miller & Wall, of Toledo, Ohio, on the brief), for appellant. Donald F. Melhorn, of Toledo, Ohio (Marshall, Melhorn, Marlar & Martin, of Toledo, Ohio, on the brief), for appellee. Before MOORMAN, MACK, and HICK-ENLOOPER, Circuit Judges. MOORMAN, Circuit Judge. On April 26, 1926, the Lake Erie Milling Company was indebted to appellee on promissory notes in the sum of $18,000. None of these notes was due. One of them had been recently renewed upon assurance by the milling company that it would use the insurance which it had received for the destruction of its plant for rebuilding and re-establishing its business. Appellee learned that the company was diverting this fund to other purposes, and on the morning of April 26th applied a checking balance of $3,559.36, which the company then had in appellee’s bank, to the note which it had recently renewed for the company upon the assurance referred to. Later in the day the milling company deposited $1,274.08 with the bank, which the bank at once applied to the note in question, and the following day, on April 27th, it deposited $720 with the bank, which the bank applied to one of the other notes which it held. The milling company was wholly insolvent at this time. Ten days later it was adjudged a bankrupt, and the trustee brought this suit against the bank to recover as an unlawful preference the three amounts that the bank received. The cheeking balance, which was first applied to the indebtedness, must be treated separately from the two later applications. This balance was accumulated in the bank in the usual course of business and was not built up or deposited for the purpose of giving a preference to the bank. At the time it was applied to the indebtedness of the milling company that company was insolvent. We have no doubt of. the right of the bank to make the application upon that basis. New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Studley v. Boylston National Bank of Boston, 229 U. S. 523, 33 S. Ct. 806, 57 L. Ed. 1313; Fourth Nat. Bank of Wichita, Kan., v. Smith (C. C. A.) 240 F. 19. And it was immaterial to the existence of this right that the debts were not due, as under section 68a of the Bankruptcy Act (11 USCA § 108(a) the right of set-off is preserved as to provable debts, whether due or not. Germania Sav. Bank Trust Co. v. Loeb (6 C. C. A.) 188 F. 285. The other two sums were paid in after the hank account had been closed by the application of the balance existing on the morning of April 26th. They were not accepted by appellee for deposit, but were taken by it — regardless of the purpose of the bankrupt — with the intention of applying them to the indebtedness of the bankrupt. A bank cannot accept funds offered for deposit, and claim the rights attaching to them as such, when they were in fact accepted for and were immediately applied to a wholly different purpose. Under such circumstances they take on the characteristics of the thing for which they were used. As to those two items, therefore, the trustee should have recovered. The decree is reversed, and the cause remanded for a new decree consistent herewith. Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. A. No B. Yes C. Mixed answer D. Issue not discussed 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 Alfred A. FORZLEY, Plaintiff-Appellee, v. AVCO CORPORATION ELECTRONICS DIVISION, a Delaware Corp., Defendant-Appellant. Alfred A. FORZLEY, Plaintiff-Appellee, Cross-Appellant, v. AVCO CORPORATION ELECTRONICS DIVISION, a Delaware Corp., Defendant-Appellant, Cross-Appellee. Nos. 85-5942, 85-6053. United States Court of Appeals, Eleventh Circuit. Sept. 8, 1987. Ramon Martinez, Jr., Naphin, Banta & Cox, Chicago, Ill., and Jeffrey B. Lathe, Blackwell, Walker, Fascell & Hoehl, Miami, Fla., for AVCO Corp. Electronics Div. E. Hugh Chappell, Jr. and Richard A. Beauchamp, Chappell & Brandt, P.A., Ft. Lauderdale, Fla., for Alfred A. Forzley. Before VANCE and ANDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge. Honorable John Minor Wisdom, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. WISDOM, Senior Circuit Judge: AVCO Corporation, Electronic Division, defendant/appellee, employed Alfred A. Forzley, plaintiff/appellant, under a two-year agreement, to work on a construction project in Saudi Arabia. Forzley’s appeal raises three dispositive issues. 1) Does the termination of the employment agreement before its expiration because of Forzley’s absence from work for more than ninety consecutive days for medical reasons constitute a breach of that agreement? 2) Is Forzley’s claim for retroactive overtime pay barred by the applicable statute of limitations? 3) Is Forzley entitled to a service award upon termination of the agreement before the expiration of its two year term under either Exhibit “A” of the agreement or Article 87 of the Saudi Arabia Workmen and Labor Law? After oral argument on cross-motions for summary judgment, the district court held that AVCO wrongfully terminated the employment agreement and, after a trial to the bench on the issue of damages, rendered final judgment against AVCO in the amount of $80,427.04 plus interest. This figure in-eluded sums for a service award under Exhibit “A” of the agreement as well as an award for retroactive overtime pay. The court denied Forzley’s request for attorney’s fees. We reverse the judgment of the district court except as to the denial of Forzley’s request for attorney’s fees, and hold that AVCO did not breach the employment agreement. We also hold that Forzley is entitled to both service awards, and remand for calculation of the amount of service award he is entitled to receive under the Saudi Arabia Workmen and Labor Law, and for a recalculation of the amount of service award to which he is entitled under Exhibit “A” of the agreement. As is explained below, any service award due under Exhibit “A” shall be reduced by the amount due under Article 87 of the Saudi Arabia Workmen and Labor Law. I. On November 10,1982, Alfred A. Forzley entered into a two year employment agreement with AVCO Corporation. The agreement required Forzley to render his full-time services to AVCO as a “field site engineer” within The Kingdom of Saudi Arabia. In exchange for full time services rendered, Forzley was to receive a monthly base salary of $3,201.12 or $38,413.44 a year. The agreement provides for various employee benefits including sick leave, which is to be computed in accordance with the Saudi Arabia Labor and Workmen Law (“The Saudi Labor Law” or “the Labor Law”). Exhibit “A” of the agreement, 'EMPLOYEE FRINGE BENEFITS ”, provides that a service award equal to fifteen percent (15%) of the employee’s annual base salary shall be paid upon the satisfactory completion of the first year of employment, and twenty percent (20%) of the employee’s annual base salary upon satisfactory completion of the second year. If the employment agreement is terminated “without cause”, the service award is to be pro-rated to the date of termination. If the employment agreement is terminated “with cause”, the employee is not entitled to any portion of the service award. Paragraph 9 of the agreement, “TERMINATION”, permits termination at any time “without cause” or “with cause” as defined in paragraphs 9(A)(1) and 9(B)(2), respectively. Neither of these paragraphs explicitly provide for termination of the agreement in the event Forzley should become ill for an extended period. The Saudi Labor Law, incorporated into the agreement under paragraph 19, does contain an explicit provision for this circumstance. Paragraph 19, “APPLICABLE LAW”, provides that the agreement and all of its terms shall be governed by and construed in accordance with the Saudi Labor Law, and that, in the event a conflict should arise between the terms of the agreement and the Labor Law, the Labor Law shall supersede those contractual terms. Article 82 of the Labor Law provides, among other things, that the employment agreement “shall ... come to an end upon ... [the employee’s] illness resulting in his absence from work for a period of not less than ninety consecutive days”. Article 82 of the Labor Law requires the employer to pay the employee the full service award computed in accordance with Article 87 when the employee is terminated for medical reasons. See Kingdom of Saudi Arabia, Ministry of Labour and Social Affairs, Labour Affairs Agency, Labor and Workmen Law and Attached Procedures 30; 32-33 (Jeddah 1969). Article 151 of the Saudi Labor Law provides that overtime pay shall be paid at the rate of 150 percent of the employee’s usual wage. Id. at 50. The essential facts are not in dispute. Forzley arrived in Saudi Arabia about November 10, 1982, after completing several weeks of training with pay at A VCO headquarters in Huntsville, Alabama. In the first week of January 1983, Forzley began inspecting and testing cables and conduits connecting a master computer control system to various remote multiflex terminals. The cables and conduits were miles long and were stretched across land in walled off sections underground so that, after inspecting one segment of the cable, Forzley would have to climb out and go on to the next manhole, climb down into that manhole, and inspect the next segment of cable and so on until all of the cable was inspected. Forzley had access to the cables and conduits only by his lifting, with the assistance of a four-foot hook, manhole covers weighing between 300 to 1,000 pounds. After lifting a cover, Forzley and a coworker would then lower a ladder and he would descend. During the first week of lifting these manhole covers, Forzley felt pain in his right side. Although he suspected that he had developed yet another hernia, Forzley did not seek medical attention, nor did he fill out an accident report documenting the occurrence of his suspected injury. On February 11,1983, one day after completing his three month probationary period, Forzley left Saudi Arabia on a three day company-approved leave to Cairo, Egypt. He started to have pains shortly after he arrived in Cairo. He then immediately purchased a ticket to return home to the United States on a flight departing Egypt the next day. Forzley did not notify AVCO of his intention to leave Egypt. Forzley arrived at his home in Florida late in the evening of February 13, 1983. That day or the next, he telephoned AVCO representatives in Huntsville, Alabama, to report what had happened and to say that he would get back in touch with them after seeing his physician. On February 17, 1983, Forzley was examined by his personal physician, Dr. Motta. Dr. Motta confirmed Forzley’s suspicion; he had another hernia requiring surgical repair. On February 24, 1983, Dr. Motta certified that Forzley had been under his care for a recurrent right inguinal hernia. On April 11, 1983, Dr. Motta certified that Forzley’s hernia condition required surgery. AVCO granted Forzley medical leave on March 23, 1983, effective February 17, 1983. Forzley did not undergo surgery until June 23,1983. He postponed surgery until first receiving authorization for its payment from AVCO’s worker’s compensation insurer. According to AVCO, its worker’s compensation insurer delayed authorizing payment because of Forzley’s initial failure to report the injury in Saudi Arabia in accordance with AVCO policy. Thus, the compensation insurer had no. documentation of an on-the-job injury that would be compensable. Forzley had other medical insurance; it is unclear, therefore, why he postponed the surgery until the compensation insurer authorized payment. In any case, AVCO paid Forzley his full salary for the first thirty days of his medical leave, and three-quarters of his full salary for the next sixty days of medical leave, in accordance with Article 158 of the Saudi Labor Law. Avco’s compensation insurer eventually paid for Forzley’s surgery and hernia-related medical costs. In a note dated July 28, 1983, Dr. Moreno, Dr. Motta’s associate, certified that Forzley could return to work subject to a restriction on heavy lifting. On July 29, 1983, Forzley wrote AVCO requesting a written statement as to his employment status and attached Dr. Moreno’s certification to his letter. On September 3, 1983, AVCO informed Forzley that it terminated the employment agreement, effective that day. The stated reason for the termination was AVCO’s determination that, based upon Dr. Moreno’s statement and Forzley’s “past and current history”, Forzley would be unable to perform the duties assigned to him in Saudi Arabia. II. Forzley filed this diversity action in Florida, the state of his domicile. In a diversity case, of course, a federal court must apply the conflict of laws doctrine of the state in which it sits. Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under Florida law, “[Wjhen the parties to a contract have indicated their intention as to the law which is to govern, it will be governed in accordance with the intent of the parties”. Department of Motor Vehicles v. Mercedes-Benz of North America, Inc., 408 So.2d 627, 629 (Fla.Dist.Ct.App.1981) (citing Hirsch v. Hirsch, 309 So.2d 47 (Fla.Dist.Ct.App.1975)); see also Lafayette Stabilizer Repair Inc. v. Machinery Wholesalers Corporation, 750 F.2d 1290, 1294 (5th Cir.1985). “The language used in the contract is the best evidence of the intent of the parties at the time they entered into the contract”. Department of Motor Vehicles, id. (citing Boat Town U.S.A., Inc. v. Mercury Marine Division, 364 So.2d 15 (Fla.Dist.Ct.App.1978)). The law chosen in the contract itself will be applied so long as there is a reasonable relationship between the contract and the state whose law is selected and the selected law does not conflict with Florida law or confer an advantage on a non-resident party which a Florida resident does not have. Department of Motor Vehicles, id. at 629-30. Florida does not distinguish between contractual selection of the law of a foreign country and contractual selection of the law of another state. See Manrique v. Fabbri, 474 So.2d 844, 845 (Fla.Dist.Ct.App.1985). In this case, the parties have agreed that their agreement and all of its articles “shall be governed by and construed in accordance with” the Saudi Labor Law and that, should any of the contractual articles conflict with that law, “the Labor Laws [of Saudi Arabia] shall supersede and take precedence over any such articles”. The choice of Saudi Labor Law is reasonable because the contract is to be performed in Saudi Arabia. Moreover, Forzley does not allege that the Labor Law, or any particular article of the Labor Law, conflicts with any law of the forum. III. Article 82 of the Saudi Labor Law provides: The labor contract shall ... come to an end upon the death of the workman, his total disability to perform his work as established by a medical certificate, or his illness resulting in his absence from work for a period of not less than 90 consecutive days____ Such disability or illness shall be established by a medical certificate issued by a competent physician ... The employer must refrain from terminating the contract during the [90 day] period of illness and shall ... pay the workman the full termination award in accordance with the provisions of this law. (emphasis added). This article has been interpreted to mean that the employment contract terminates by operation of law upon the employee’s total disability or upon an illness lasting more than 90 consecutive days unless the parties have agreed otherwise. See A. Lerrick, Q. Javed Mian, Saudi Business and Labor Law and its Interpretation and Application 43 (1982). Cf. Restatement (Second) of Agency § 409(1) (1958) (“A principal is privileged to discharge before the time fixed by the contract of employment an agent who ... fails to perform or reasonably appears to be unable to perform a material part of the promised service, because of physical or mental disability.”) The only prohibition in Article 82 is that an employment agreement cannot be terminated during the first ninety days of an employee’s illness. Forzley was granted a period of sick leave effective February 17,1983, after his physician certified to his having a hernia and his inability to travel. He underwent surgery on June 23, 1983, and was not released by his physician for return to work until July 28, 1983. The release was subject to a restriction on lifting. Thus, Forzley was absent from work for a continuous period of more than 150 days before being given a qualified release to return to work. AVCO terminated the agreement on September 3, 1983. There is no provision in the employment agreement to the effect that, if Forzley becomes unable to work for a period in excess of 90 days, the contract will remain in effect. Accordingly, we hold that termination of the agreement was, for the reasons given and at the time done, in accordance with Article 82 of the Saudi Labor Law, and thus, AVCO did not breach the agreement. Forzley argues that the 90 day period in Article 87 was tolled until June 23, 1983, the day he underwent surgery, because AVCO caused a delay in processing his request for payment of the proposed surgery. Because he was released for return to work within 35 days of his surgery, Forzley contends that, but for the delay, he would not have been absent from work for 90 days or more, and that Article 87 does not, therefore, provide a basis for termination of the agreement. The suggestion that AVCO caused the delay in Forzley’s postponing surgery until June 23, 1983, is without support in the record. It is undisputed that Forzley did not seek medical attention or file an accident report documenting his suspected hernia at any time before leaving for the United States in February 1983, even though he first thought he sustained a hernia in early January 1983. Forzley had four previous hernias, all requiring surgical repair, and therefore was familiar with the symptoms associated with hernias. A hospital for AVCO workers was on or near the construction site. During an orientation meeting, Forzley was instructed regarding how to file accident reports. It is unclear, therefore, why Forzley did not seek medical attention or file an accident report documenting his suspected injury. Instead, Forzley chose to make arrangements to return to the United States without first informing anyone at AVCO of his planned departure, or the reasons for doing so. This was not an emergency departure; Forzley’s flight did not leave for the United States until the day after his ticket was purchased. Forzley’s worker’s compensation claim was presented to AVCO for the first time after his return to the United States. According to AVCO, because Forzley failed to document properly his injury in Saudi Arabia, its compensation insurer needed other documentation that the hernia was sustained at work so that it would be liable for the expenses associated with Forzley’s medical claim. AVCO does state that “some of the delay” in processing Forzley’s claim was caused by its having less than complete information on file in its Alabama office with respect to Saudi claims. That delay, however, is irrelevant to any tolling issue in the absence of Forzley's contention that he could not have undergone the proposed surgery without an advance guarantee for its payment by AVCO’s worker’s compensation insurer. Indeed, on April 7, 1983, some 100 days before his medical release to return to work, AVCO advised Forzley by letter that there was no need to delay the proposed surgery because, “one insurance or the other is going to assume responsibility for the surgical bills ... ”. Forzley does not deny receiving this letter, nor does he contend that his group medical policy did not provide coverage for his hernia related medical expenses. Moreover, Forzley does not contend that his physician refused to operate absent advance guarantee as to which insurer would pay him. Accordingly, Forzley fails to raise a genuine issue that AVCO caused his surgery to be delayed. The 90 day period in Article 82 was not, therefore, tolled, if at all, beyond April 18,1983. More than 90 days elapsed between then and July 28, 1983, the date his physician released him for return to work. IV. The judgment awarded Forzley included sums for overtime pay that accrued before the alleged wrongful termination. Although the employment agreement is silent with regard to overtime pay or the rate of compensation for work performed overtime, AVCO paid Forzley for 229 hours of overtime work performed at his usual hourly rate. Article 151 of the Saudi Labor Law, however, requires that an employee be compensated at the rate of 150 percent of his usual hourly rate for all overtime work performed. Because the overtime rate prescribed in Article 151 conflicts with the rate paid, Article 151 controls, in accordance with paragraph 19. Forzley’s right to compensation for overtime pay at the rate of 150 percent of his usual hourly pay arises exclusively under Article 151 of the Saudi Labor Law. When the cause of action arises in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in a Florida State Court. Januse v. U-Haul Co., Inc., 399 So.2d 402, 403 (Fla.Dist.Ct.App.1981) (quoting Fla.Stat. § 95.10 (1975)). Article 13 of the Labor Law provides: No complaint shall be heard by any Commission in respect of violations of the provisions of this [Labor] Law ... after the lapse of twelve months from the date of the occurrence of such violation. No case or claim relating to any rights provided in this [Labor] Law shall be heard after the lapse of twelve months from the date of termination of the contract. It is unclear whether the statute of limitations on Forzley’s claim for retroactive overtime pay begins to run on the last date of the occurrence of the violation, presumably February 10, 1983, at the latest. If so, this claim clearly would be time-barred because Forzley last worked in Saudi Arabia on February 10, 1983, and his original complaint was filed more than one year from that date. We do not decide, however, whether the applicable statute of limitations for Forzley’s claim for overtime pay is one year from the date of the alleged violation, because we conclude that, even assuming the more liberal period applies, i.e., one year from the date of termination of the contract, Forzley’s claim for overtime pay is nevertheless still time-barred. Forzley filed an amended complaint to assert a claim for overtime pay on May 15, 1985, one year and some eight months after the termination. Of course, if the amended complaint can be said to relate back to the original complaint, Forzley’s amended complaint would not be time-barred under the more liberal limitations period of Article 13. An amended claim relates back to those asserted in the original pleading if it arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Fed.R.Civ.P. 15(c). “Rule 15(c) is based on the concept that a party who is notified of the litigation concerning a given transaction or occurrence has been given all the notice that the statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment ... will relate back even though the statute of limitations has run in the interim”. 3 J. Moore, Moore’s Federal Practice ¶ 15.15[3] at 15-147 to 149 (2d ed. 1985). “[A]n amendment which states an entirely new claim for relief based on different facts will not relate back.” Id. at 15-149. Forzley filed his claim for damages resulting from AVCO’s alleged breach of contract on August 16, 1984. That claim was based solely on the ground that the agreement was terminated before the expiration of the two year term without contractual justification. That complaint put AVCO on notice that Forzley sought pay and other contractual benefits that he would have received for the remainder of the contractual term had the agreement not been terminated on September 3, 1983. We conclude that Forzley’s claim for damages, which was based solely on the alleged wrongful termination of the employment agreement before the expiration of the two-year term, did not apprise AVCO that it could expect to defend a claim for retroactive overtime pay that preceded the termination. Accordingly, we hold that the claim for retroactive overtime pay did not arise out of the transaction or occurrence of the original complaint, and is time-barred under even the more liberal limitation period in Article 13 of the Saudi Labor Law. V. The employment agreement contains two service award provisions. They are: paragraph one of Exhibit “A” of the agreement (“Employee Fringe Benefits ”), and, pursuant to paragraph 19, Article 87 of the Saudi Labor Law. If an Exhibit “A” service award vests, its payment is intended to include payment of the service award, payable under Article 87, and to that extent, the awards are not mutually exclusive. Article 87 of the Labor Law provides: Where the term of a labor contract concluded for a specified period comes to an end ... the employer shall pay to the workman an award for the period of his service to be computed on the basis of half a month’s pay for each of the first five years of service ... The last rate of pay shall be taken as basis for the computation of the award. For fractions of a year, the workman shall be entitled to an award which is proportionate to his service during that period. Of course, in this case, the agreement ended before the expiration of its two year term. Article 82 nevertheless dictates that the full termination award shall be paid in the event an employee is terminated for illness or disability. Thus, where an employment agreement is terminated by the employee’s illness, Article 82 requires payment of a service award even where the specified contractual term has not expired at the time of the termination. Clearly then, Forzley is entitled to a service award in an amount to be computed in accordance with Article 87. Paragraph one of Exhibit “A” of the agreement provides: 1) Service Award Upon the satisfactory completion of a one (1) year agreement, the company shall pay the employee an amount equal to fifteen percent (15%) of the employee’s base salary, which amount includes the amount of service award required under [Article 87 of the] Saudi Arabian Labor and Workman Law ... In the event the employee is terminated without cause, the service award shall be prorated to the date of such termination. AVCO contends that Forzley failed to show entitlement to an Exhibit “A” service award, that is, presumably, Forzley failed to show that his performance in Saudi Arabia before being placed on sick leave was “satisfactory” and therefore, the district court was erroneous in awarding one. We disagree. Forzley asserted that the employment agreement provided for payment of a service award, and presented a figure representing his calculation of the amount of that award due him. AVCO does not contend that, before being placed on sick leave, Forzley’s performance was less than satisfactory, nor does our review of the record disclose any evidence that Forzley’s performance was unsatisfactory. We turn now to the question whether termination because of illness is a “without cause” termination for purposes of entitlement to an Exhibit “A” service award. The phrase “without cause” as used in Exhibit “A” is not defined with reference to any particular contractual definition. Exhibit “A”, however, purports to include the Article 87 service award in payment of the Exhibit “A” service award, and, Article 82 of the Saudi Labor Law does not treat termination for illness as a bar to recovering the Article 87 service award. For this reason, we conclude that, at least for purposes of obtaining an Exhibit “A” service award, Forzley’s termination was “without cause”. VI. We have considered all of the remaining issues raised by the parties and conclude that they are without merit or are mooted by our holding that AVCO did not breach the employment agreement. For the reasons stated, we REVERSE the judgment of the district court, except as to the denial of Forzley’s request for attorney’s fees, and order summary judgment in favor of AVCO on the breach of contract claim. We also REMAND for the district court to recalculate the Service Awards to which Forzley is entitled, in a manner consistent with this opinion. . Forzley’s title, "field site engineer”, is a misnomer; it is not descriptive of his position. Forzley is a computer technician, not an engineer. The AVCO job description lists the responsibilities corresponding to this title as including the repair and maintenance of small business equipment and computer related peripherals; the installation and deinstallation of equipment; and the performance of “other related duties as assigned”. In addition to requiring Forzley to render his full time services as a "field site engineer”, the agreement alternatively provides that he render his full time services in "such other capacity which the company deems appropriate and is within the employee’s capabilities”. Finally, the agreement provides that the employee's duties “may include the training of Saudi Arabian personnel”. AVCO was in Saudi Arabia to install computer systems in the King Khalid International Airport in Riyadh, Saudi Arabia. . Article 158 of the Saudi Labor Law provides; An employer who employs twenty workmen or more shall, in case a workman’s illness is confirmed by a medical certificate issued by a competent physician ... grant the workman sick leave with full pay for the first thirty days and with three-quarter pay for the next 60 days in any one year. . Article 151 provides: The employer shall pay the workman for additional work hours an additional wage equivalent to the workman’s normal wage plus fifty percent (50%). Where the work is performed on the weekly day of rest or on feast days or official holidays, the employer shall pay the workmen additional wages for the regular or additional work hours. . Forzley's four previous hernias required surgery. AVCO was unaware of Forzley’s history of recurrent hernias because this information was omitted from Forzley’s pre-employment medical examination form. . Paragraph 4 of the agreement, “PROBATIONARY PERIOD", provides: A. ... it is agreed and understood that the initial three month period, beginning from the Employee’s arrival at [the] assigned site in Saudi Arabia, shall be [the] probationary period. During, or at the end of, such period the company has the right to terminate [the] employee’s services if not being performed to the satisfaction of the Company. . Presumably, the reference to Forzley’s "past and current history” is a reference to his history of recurrent hernias, which became known to AVCO sometime after it placed Forzley on medical leave. . Paragraph 19 of the employment agreement, "APPLICABLE LAW", provides: This agreement and all Articles contained herein shall be governed by and construed in accordance with the Saudi Arabian Labor and Workmen Laws and all amendments, decrees, and resolutions pertaining thereto, and should any articles contained herein conflict with said Labor Laws, the Labor Laws shall supersede and take precedence over any such articles. During oral argument, Forzley’s attorney asserted that Saudi labor law should not apply, because AVCO did not properly prove Saudi labor law. Foreign law, however, need not be "proved” in an evidentiary sense. Rule 44.1 of the Federal Rules of Civil Procedure provides, in pertinent part: "A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source ... whether or not submitted by a party or admissible under the Federal Rules of Evidence." (emphasis added). See also 9 C. Wright, A. Miller, Federal Practice and Procedure §§ 2443-2446 (1971). AVCO gave sufficient notice of its intent to rely on Saudi labor law in its pleadings, and supplied Forzley with a copy of the English translation of that law. Forzley is literally correct in stating that the submitted translation is not an official one. There is, however, no "official translation”; only the Arabic text is official. Forzley does not contend that there is any error in the translation. Absent any specific objection to the accuracy of the translation, we assume that the translation is an accurate one. . Forzley had group medical coverage through his employment at AVCO. Paragraphs “H" and "I” of the Group Insurance Benefit Statement indicate that hospital expenses for nonoccupational injury or illness and the reasonable and customary fees charged by the surgeon and anesthesiologist will be paid in full. Forzley does not argue that his recurrent right inguinal hernia would be considered a nonoccupational injury or illness under this policy that would not be covered. . Forzley does not state when he received this letter. Even assuming that a letter mailed from Huntsville, Alabama, on April 7 or 8, 1983, took ten days to arrive at Forzley’s home in North Miami Beach, Florida, more than 90 days would have elapsed between its arrival date and July 28, 1983, the date he was released for return to work. . We do not decide the validity under the Saudi Labor Law of the provision that payment of an Exhibit "A” service award includes payment of the Article 87 service award where the Exhibit "A" service award is paid in advance of termination. See A. Lerrick, Q. Javed Mian Saudi Business and Labor Law, at 44-45. In this case, neither award has been paid. 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LURIA BROTHERS AND COMPANY, Inc., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. Nos. 14402, 14411-14421, 14470-14472. United States Court of Appeals Third Circuit. Argued Jan. 21, 1966. Decided Jan. 8, 1968. Rehearing Denied Feb. 27, 1968. Morris Wolf, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa. (Nathan Silberstein, Burton Caine, Philadelphia, Pa., on the brief), for Luria Brothers and Co., Inc., petitioner in No. 14402. Albert R. Connelly, Cravath, Swaine & Moore, New York City (Edward C. Perkins, Daniel I. Davidson, New York City, on the brief), for Bethlehem Steel Corp. et al., petitioners in No. 14414. Howard M. Holtzmann, Holtzmann, Wise & Shepard, New York City (Mark J. Maged, New York City, on the brief), for Colorado Fuel & Iron Corp. et al., petitioners in No. 14421. James A. Bell, Thorp, Reed & Armstrong, Pittsburgh, Pa. (C. M. Thorp, Jr., Charles Weiss, Pittsburgh, Pa., Lewis Franklin Powell, Jr., Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on the brief), for National Steel Corp., petitioner in No. 14415, Edge-water Steel Co., petitioner in No. 14416 and for Weirton Sell Co., petitioner in No. 14472. William H. Buchanan, General Atty., United States Steel Corporation Pittsburgh, Pa. (L. L. Lewis, Merrill Russell, Pittsburgh, Pa., on the brief), for U. S. Steel Corp., petitioner in No. 14417. Joseph A. Vieson, W. Robert Chandler, Cross, Wrock, Miller, Yieson & Kelley, Detroit, Mich., for petitioner Detroit Steel Corp. R. H. McRoberts, Edwin S. Taylor, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for petitioner Granite City Steel Co. Robert C. McAdoo, Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner Baldwin-Lima-Hamilton Corp. Gilbert W. Oswald, Samuel D. Slade, Sehnader, Harrison, Segal & Lewis, Philadelphia, Pa., for petitioner Lukens Steel Co. Arnold F. Shaw, Donohue, Kaufmann & Shaw, Washington, D. C., for petitioner Phoenix Steel Corp., successor by merger to Phoenix Iron and Steel Co. and Central Iron and Steel Co. Lester S. Clemons, William K. McKib-bage, Quarles, Herriott & Clemons, Milwaukee, Wis., for petitioner Bucyrus-Erie Co. Ralph M. Barley, Barley, Snyder, Cooper & Mueller, Lancaster, Pa., for petitioner Grinnell Corp., successor by merger to Columbia Malleable Castings Corp. Dickinson, Wright, McKean & Cudlip, William B. Cudlip, T. Donald Wade, W. Gerald Warren, Detroit, Mich., for petitioner McLouth Steel Corp. Frederick H. Mayer, Federal Trade Commission, Washington, D. C. (James Mcl. Henderson, General Counsel, J. B. Truly, Asst. General Counsel, David B. Morris, Attorney, Attorneys for Federal Trade Commission, Washington, D. C., on the brief), for respondent in all cases. OPINION OF THE COURT Before McLAUGHLIN, KALODNER and GANEY, Circuit Judges. GERALD McLAUGHLIN, Circuit Judge. Our decision in this appeal has been delayed because of litigation pending in the United States Supreme Court concerning the power of the Federal Trade Commission (Commission) to pass upon the merits of controversies before it during the period when the Commission was composed of only three of its five members and one of those three dissented. The Supreme Court has validated the hearing and decisional status of the Commission as constituted when it heard and decided that case. Federal Trade Commission v. Flotill Products, Inc., 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (December 4, 1967). We have therefore considered and determined the matter before us on its merits. The Federal Trade Commission issued its original complaint in this proceeding on January 19, 1954. This was amended and supplemented by a subsequent complaint issued on July 13, 1954. Hearings were commenced on January 12, 1955, and continued periodically until May 14, 1958. During the course of the hearings which took 113 days, the testimony of more than 250 witnesses was taken. Counsel for the Commission filed proposed findings of fact and conclusions of law on November 10, 1958. The various respondents (petitioners herein) filed their separate counter-findings of fact, conclusions of law and orders from January 5, 1959 to January 13, 1959. The hearing examiner’s initial decision was filed on March 29, 1961. Oral argument before the Commission was heard on November 21, 1961, and the Commis-. sion’s opinion, which basically adopted the hearing examiner’s initial decision, was announced on November 15, 1962. On April 11, 1963, Luria Brothers and Company, Inc. petitioned this Court, pursuant to Section 5(c) of the Federal Trade Commission Act, 38 Stat. 719 (1914), as amended 15 U.S.C. § 45(c) (1958), and to Section 11 of the Clayton Act, 38 Stat. 734 (1914), as amended 15 U.S.C. § 21(e), to review and set aside the order of the Commission dated February 13, 1963. I. The Complaint The complaint, as finally amended and supplemented, was in two counts. Count I in substance charged that Luria and the other petitioning mills entered into a series of agreements whereby Luria was to act as the exclusive or substantially exclusive broker for the petitioning mills. It charged that these agreements led to a restraint of trade and tended to create a monopoly in the scrap metal market in violation of Section 5 of the Federal Trade Commission Act, 15 U.S. C. § 45(a) (1). Count I also charged that the petitioning mills conspired to effect a monopoly in Luria, that Luria and others restrained trade in export scrap, that petitioners engaged in coercive tactics, and that Luria acquired various competing companies — all in violation of Section 5. Count II specifically charged Luria with violation of Section 7 of the Clayton Act, 15 U.S.C. § 18 by the acquisition of the stock of Southwest Steel Company, a competing broker, and the stock of six other companies. Several charges were dismissed by the hearing examiner and the Commission. Those sustained were a finding that petitioners violated Section 5 of the Federal Trade Commission Act by separate agreements whereby each mill made Luria its exclusive or substantially exclusive broker; that Luria’s participation in the sale of scrap to the purchasing agent, Office Commun des Consommateurs de Ferradle (OCCF), for the Coal and Iron Community of Western Europe was illegal ; and that Luria’s ownership of the stock of Southwest violated Section 7 of the Clayton Act. The Commission’s order prohibited Luria from contracting or agreeing to act as the exclusive or substantially exclusive broker for any plant of any respondent mill or any other buyer of scrap iron and steel; forbad the respondent mills without limit as to time to buy all or substantially all their scrap from or through Luria, and forbad them for five years to buy more than 50 percent of their scrap from Luria except to the extent that scrap, adequate in quantity and quality, is not available from other suppliers on terms which are substantially similar and competitive; forbad Luria, directly or indirectly, to agree to act as the exclusive or substantially exclusive broker in the export of scrap; forbad Luria for five years from acquiring the business of any scrap broker or dealer without the permission of the Commission and ordered Luria to divest itself of its interest in Southwest. It is from these findings and the foregoing order that petitioners seek review by this Court. II. Industrial Facts At least 98 percent of the iron and steel scrap consumed in the United States is purchased by the producers of iron and steel. Scrap and pig iron are the principal metallics used in making iron and steel. Part of the scrap used in the production process is generated as a waste product of the mills’ own activities and is referred to as “home scrap.” This constitutes about one-half of the scrap consumed by producers. The remainder must be purchased from outside sources and is referred to as “purchased scrap.” Sources of purchased scrap include railroads, industrial materials, ships, automobiles, discarded household appliances, etc. Much scrap is collected by a vast army of junk dealers and peddlers who make regular rounds for this purpose. These junkmen usually sell their scrap to larger dealers who in turn sell directly to the consumer or to brokers. Approximately 90 percent of all scrap used is purchased either from dealers or brokers. Scrap brokers, as that term is used in the industry, has reference to persons who purchase and sell scrap for their own account, taking title to it and assuming all the risks incident to ownership. In effect they are wholesale dealers, but do not take physical possession of the material. Scrap dealers, on the other hand, operate yards where they take possession of the scrap, sort and process it. There is no hard and fast line differentiating brokers from dealers since in many instances, a dealer may act as a broker and some brokers also own yards where they operate as dealers. Brokers derive their profit from the difference between what they pay for the scrap and what, they can get for it. In general, they aim at a differential of $1.00 a gross ton, but because of market fluctuations and varying competitive conditions, the brokerage business is highly speculative. III. History op Luria The Luria business began about 1889 when the grandfather and greatgrand-father of the present generation of Luri-as began to collect scrap. A small office was opened in Reading, Pennsylvania, and the business was incorporated in 1918. By 1930, Luria had opened offices in New York, Pittsburgh, Boston and Philadelphia and set up two yards in Pennsylvania. By 1946, Luria had become a substantial supplier to eleven of the petitioning mills. At the same time Luria expanded westward opening offices in Detroit, Chicago, Cleveland, Houston and St. Louis. Later Luria opened offices in Colorado, Alabama, Utah, California and Oregon. Domestically Luria is the largest scrap broker with 16 offices and 6 yards located in representative cities throughout the country. When the Korean War ended in 1953, Luria entered the export market by supplying Hugo Neu, a broker specializing in the export of scrap. In 1954, Luria and two other brokers joined forces and entered into export agreements with OCCF. IV. The Relevant Domestic Markets The statistical information gathered by the Commission covers the scrap purchases of practically all the steel mills in the United States since approximately 99 percent of the country’s steel mills reported their purchases to the Commission. These mills referred to as “reporting mills” account for between two-thirds and three-fourths of all the scrap consumed in the United States. As previously indicated, 90 percent of the scrap purchased by the reporting mills is obtained from broker-dealer sources. In tabulating its data the Commission properly excluded purchases from sources other than broker-dealers since the sales by industrial fabricators, railroads and shipyards do not effectively compete in the market in which Luria and other broker-dealers operate. In evaluating the effect of Luria’s operations on the scrap market the Commission divided the country into five geographic areas, one subdivision and the nation as a whole. (1) The North Atlantic area consists of the six New England states, New York, New Jersey, Eastern Pennsylvania, Delaware, Maryland and the District of Columbia. This area contains 24 reporting mills which operate 38 plants. During the pertinent period of the investigation, the years 1947-1954, the petitioning mills accounted for 80 percent of all scrap purchased by the reporting mills from broker-dealer sources. The purchases by the reporting mills in this district accounted for approximately 20 percent of all purchases by domestic mills from broker-dealer sources. (2) The Eastern Pennsylvania district is a subdivision of the North Atlantic area in which are located 13 of the above 24 mills. The petitioning mills accounted for 84 percent of the purchases made by these 13 reporting mills. Together these 13 mills account for approximately one-half of all purchases made by all the reporting mills in the North Atlantic area. (3) The Pittsburgh-Youngstown area is a hexagonal territory extending from Johnstown on the east, through Monessen and Washington, Pennsylvania, northwest through Steubenville, Ohio, Weirton, West Virginia, Youngstown and Warren, Ohio, east through Sharon, Pennsylvania, and back to Johnstown via Butler, Pennsylvania. Twenty-three mills operating 29 plants are located within this area. In 1954, the petitioning mills accounted for 18 percent of the total purchases in that area by all reporting mills. (4) The St. Louis area includes metropolitan St. Louis and its suburban areas in Missouri and Illinois. Granite City, the only petitioner in this area, and Laclede Steel Company, a reporting mill, operate the only two mills in the area. The purchases of the two mills and three large foundries in the area represent 80 percent of all purchases in the region. Granite City alone accounts for one-half of the scrap purchased by these five companies. (5) The Rocky Mountain area includes the states of Arizona, Utah, Colorado, Wyoming, Idaho and Montana. Petitioners, C.F.&I. at Pueblo, Colorado, and U. S. Steel at Geneva, Utah, operate the only two mills in the area. (6) The Pacific Coast area contains 9 reporting mills with a total of 12 plants in this area which is comprised of the states of California, Oregon and Washington. The purchases of Bethlehem-Pacific, the sole petitioning mill in the area, total almost one-half of all the purchases of the 9 reporting mills. (7) In the United States as a whole, the petitioning mills accounted for 30 percent in 1953, and 24 percent in 1954 of total scrap purchases by all reporting mills from broker-dealer sources. The following table clearly depicts the extent to which the practices of the petitioning mills affect the scrap markets in the various areas. Percentage Shares of the Petitioning Mills’ Purchases from Broker-Dealer Sources in Total Purchases from Such Sources By All Reporting Mills in the Respective Areas 1947 1948 1949 1950 1951 1952 1953 1954 North Atlantic 80 79 75 74 77 78 79 80 Eastern Pennsylvania 82 81 81 79 80 79 79 84 Pittsburgh-Youngstown - - - 13 15 16 16 18 St. Louis - - - 45 44 39 50 44 Rocky Mountain 100 100 100 100 100 100 100 100 Pacific Coast 40 37 38 41 43 45 52 49 United States 27 25 27 24 28 38 30 24 Luria’s percentage share in the total scrap purchases by all reporting mills from broker-dealer sources in each relevant area between 1947 and 1954 is indicated by the following tabulation, 1947 1948 1949 1950 1951 1952 1953 1954 North Atlantic 34.1 38.1 46.8 54.6 62.0 68.8 73.1 74.5 Eastern Pennsylvania 48.5 51.8 58.3 72.4 72.2 74.1 78.9 83.3 Pittsburgh-Y oungstown 20.4 20.6 26.2 37.2 32.2 35.4 36.5 36.0 St. Louis 16.5 31.0 51.7 42.5 51.6 45.4 Rocky Mountain 99.3 94.0 98.6 95.2 87.2 90.6 95.5 98.9 Pacific Coast 6.6 11.7 21.2 33.3 45.8 50.6 United States 17.1 18.8 22.3 29.4 31.4 33.3 36.5 33.7 Even when the Commission confined its evaluation of Luria’s domination in the scrap industry to a comparison of the purchases made by the petitioning mills from Luria with those made by all reporting mills from all brokers and dealers, Luria’s overshadowing position was brought into focus as indicated by the following table. Percentage Shares of the Petitioning Mills’ Purchases from Luria and Subsidiaries in Total Purchases from Broker-Dealers By All Reporting Mills 1947 1948 1949 1950 1951 1952 1953 1954 North Atlantic 29 33 40 47 56 62 68 70 Eastern Pennsylvania 41 43 50 61 61 63 73 75 Pittsburgh-Y oungstown 10 7 15 9 11 12 12 12 St. Louis 0.1 29 44 39 50 44 Rocky Mountain 100 94 99 96 87 91 96 99 Pacific Coast 2 8 16 25 39 39 United States 10 10 14 16 21 22 25 21 Luria’s position of dominance in its relations with the petitioning mills in 1953 and 1954 is indicated by the percentage of scrap requirements filled by Luria for each mill. Percent of Total Bought from Luria 1953 1954 89.8 87.7 Lukens 96.7 94.1 B. L.H. 100.0 100.0 Columbia 98.4 95.3 C. F.&I. 100.0 100.0 Edgewater 100.0 99.4 Phoenix 100.0 100.0 Granite City 91.1 100.0 Detroit 70.2 69.8 National 89.5 93.9 U.S.S. McLouth 71.9 74.2 Bethlehem 81.2 80.9 Bethlehem-Pacific 75.4 80.4 Bucyrus-Erie 89.1 84.2 V. The Foreign Market In 1954, Luria directed its efforts toward securing a hold in the export market. In 1953, the European Common Market countries had formed a central buying office to purchase scrap required by foreign steel mills. This office, OCCF, contacted Luria, Schiavone-Bo-nomo, and Western Steel International Corporation for the purpose of obtaining a scrap broker in the United States. The three concerns negotiated a contract with OCCF on July 14, 1954 providing that the three would provide all scrap to be purchased by OCCF until December 31, 1954. By subsequent arrangement, the contract was extended until December 31, 1955. Between 1954 and 1956, the six Common Market countries purchased between 66 and 84 percent of the total scrap exported from the United States to Europe. In 1954, the Luria group supplied 90 percent and in 1955, 95 percent of total scrap purchased by OCCF from the United States. The agreement with OCCF had a substantial effect on Luria’s domestic competitors since in 1954, Luria foreclosed 80 percent of the domestic scrap market in the North Atlantic area. With only 20 percent of the domestic market available, Luria’s competitors were forced to dispose of their scrap abroad. Since the six Common Market countries purchased between 66 and 84 percent of the total scrap exported to Europe in the period between 1954 and 1956, Luria’s competitors were effectively barred from both the domestic and foreign scrap markets. VI. The Southwest Acquisition Southwest was a scrap broker with its scrap sales concentrated in the Pittsburgh-Youngstown area. Prior to its acquisition by Luria’s purchase of all its issued and outstanding stock on February 1, 1951, Southwest was the second largest scrap broker in the area preceded only by Luria. Of the nine other principal brokers in the area, Southwest’s sales exceeded its closest competitor by two to one. Before the acquisition, Luria and Southwest combined supplied almost one-half of the total scrap purchased by the reporting mills from brokers and dealers in the area. Moreover, both companies supplied the same consumers. The record justifies the Commission’s finding that Luria and Southwest were substantial competitors in the Pittsburgh-Youngstown area. VII. Luria’s Exclusive or Substantially Exclusive Operations with the Various Petitioners The Commission’s finding that Luria’s practices violated Section 5 of the Federal Trade Commission Act is based on evidence that during the years 1947 through 1954, the percentage of business conducted with Luria greatly increased and Luria employed tactics in conjunction with the various petitioners designed to eliminate competing brokers. A review of the record manifestly supports the Commission’s conclusions. Bethlehem is the largest scrap purchaser in the Eastern part of the United States where it operates four scrap consuming plants. Prior to 1950, Bethlehem’s scrap purchases from Luria for its four plants in the North Atlantic area were relatively small. After 1950, this situation strikingly changed. Between 1947 and 1949, Luria’s share rose from 15 to 32 percent while between 1950 and 1954, it increased from 40 to 83 percent. Since Bethlehem’s purchases from broker-dealer sources represented close to 50 percent of the total broker-dealer purchases in the North Atlantic area, in 1954 Luria’s competitors were foreclosed from 40 percent of the market. Concomitant with Luria’s percentage increase, Bethlehem began to discriminate against Luria’s competitors, many of whom had been former suppliers of Bethlehem. One of these competitors was Schiavone-Bonomo Corporation, which in 1947 was Bethlehem’s second largest supplier. During the succeeding years Schiavone-Bonomo’s sales significantly decreased until in 1954, it was no longer among Bethlehem’s five largest suppliers. Bethlehem also placed restrictions on Schiavone-Bonomo by requiring it to secure scrap only from certain designated areas and by paying it less than it gave to Luria. These same practices were employed against other former suppliers to Bethlehem such as Commercial Steel and Chemical Corporation, Harcon Corporation and Louis Cohen & Sons. These and other broker-dealer concerns found that their sales to Bethlehem decreased as Luria’s increased, and they were informed by Bethlehem that it would only purchase the scrap these companies were selling if they sold through Luria. Not only did Bethlehem cease making purchases from former broker-dealers, but it channelled shipments from direct suppliers such as industrial fabricators and railroads through Luria. The record clearly supports the hearing examiner’s conclusion that “As a result of these changes, somewhere between 1950 and 1953 Luria became Bethlehem’s substantially exclusive broker.” The relationship between Luria and Bethlehem is symptomatic of the condition that existed throughout the North Atlantic area. The same policy of increasing sales and decreasing competition existed in Luria’s relations with C.F.&I.’s four plants in the area, with Phoenix, Lukens, B-L-H and Grinnell. It is clear that Luria had established itself as the exclusive or substantially exclusive broker for the six petitioning mills in the area whose combined purchases of scrap accounted for approximately 80 percent of the total scrap purchased by all the reporting mills. The Rocky Mountain area contains two reporting mills, one owned by C.F.&I. located at Pueblo, Colorado, and the other owned by U. S. Steel located at Geneva, Utah. C.F.&I.’s mill is the largest scrap consuming plant in the area. C.F.&I. admits that it entered into an understanding with Luria on June 1, 1946 to the effect that the latter would serve as its exclusive broker. On the same day a formal notice to that effect was issued to the trade. The understanding was. formalized by a written contract executed on August 23, 1946, to run for a term of five years. Although the formal agreement was terminated on October 9, 1946, the oral agreement continued in full force. This is indicated by the fact that except for 1951 when due to Government allocations Luria supplied 95 percent, in the years 1947 through 1954, Luria supplied 100 percent of the scrap purchased by C.F.&I. for its Pueblo plant. In October, 1948, the Geneva plant of U. S. Steel accepted Luria’s offer to act as its exclusive broker. Notice of this was sent to the trade, and although U. S. Steel contends that the agreement terminated in 1952, this contention is not supported by the statistical evidence nor by any announcement of the alleged termination by U. S. Steel. Following the agreement, Luria supplied 95 percent of the scrap purchased from broker-dealer sources by Geneva in 1949, 90 percent in 1953 and 94 percent in 1954. Certainly if the agreement was terminated as U. S. Steel argues, its termination did not alter petitioner’s relations with Luria. Bethlehem-Pacific, the only petitioner in the Pacific Coast area, operates three plants which account for approximately 50 percent of the scrap purchased by the reporting mills. Bethlehem-Pacific’s practices in the area closely followed those of Bethlehem’s in the North Atlantic area. For example, until 1950, its Los Angeles plant purchased scrap from numerous brokers. In October of that year, Bethlehem-Pacific entered a ten year written contract whereby it agreed to purchase the major portion of its monthly supplies from Luria. The effect of the agreement is evidenced by the fact that in 1949 Luria supplied the Los Angeles plant with only one percent of its scrap requirements where as in 1951, it increased to 57 percent and in 1953, it reached 94 percent. Furthermore, in some instances the brokers who had previously supplied the Los Angeles plant were told they would have to sell through Luria. Luria first supplied the Seattle plant in 1949. By 1952, its sales accounted for 46 percent and by 1954, for 83 percent of the scrap purchased by the plant from broker-dealer sources. Here too, former suppliers were told they would have to sell their scrap through Luria. Luria’s supply agreements reached such proportions that in 1954, it supplied 80 percent of Bethlehem-Paeific’s scrap requirements resulting in the foreclosure of 40 percent of the Pacific Coast market from competition. Luria’s exclusive supply agreement for the St. Louis area is indicated by its relationship with Granite City. Prior to 1950, Luria supplied Granite City with only one percent of its scrap, the remaining 99 percent being filled by other brokers and dealers in the area. In March, 1950, Granite City and Luria agreed that the latter would supply the mill. A notice was sent to the trade announcing the “appointment of Luria Brothers & Company, Inc. of Philadelphia, Pennsylvania, as our exclusive scrap broker.” Former suppliers were told to sell through Luria. In 1953, this arrangement accounted for 50 percent of total scrap purchases by the reporting mills in the area. The same program was carried out in the Pittsburgh-Youngstown area. Luria exhibited the same substantial growth while competitors experienced decreases and were told they must sell through Luria. In this manner Luria has become the exclusive or substantially exclusive broker for Bethlehem’s Johnstown plant, Edgewater, and Weirton, a subsidiary of National Steel. These three plants account for 18 percent of total purchases by all reporting mills in the area and by 1954, Luria accounted for 36 percent of scrap sales by all brokers and dealers in the area. The Commission’s examination of the scrap purchasing policies of Bucyrus, Mc-Louth, and Detroit Steel, which did not fit into any of the other previously delineated areas, also revealed Luria’s exclusive or substantially exclusive scrap supplying arrangements. On the basis of the foregoing the Commission decided that Luria’s agreements were in violation of Section 5 of the Federal Trade Commission Act. The petitioning mills challenge these findings claiming (1) the statistical data should not be limited to broker-dealer sources but should include all suppliers of scrap metal; (2) the market areas used by the hearing examiner did not comply with the standards announced by the applicable case law; (3) the agreements were terminable at will and, therefore, do not violate the anti-trust laws; (4) the decision to buy mainly from Luria was a proper business decision independently reached by the petitioning mills; (5) the mills were forced to purchase from Luria because other brokers could not meet their increasing demands; and (6) the order of the Commission is arbitrary, unreasonable and ambiguous. They also claim error in the Commission’s finding of a violation of Section 7 of the Clayton Act. We turn now to a consideration of these points. The Federal Trade Commission Act Petitioners urge error in the Commission’s compilation of data. They argue it should not have been restricted to purchases only from broker-dealer sources but should have included the sales of all scrap suppliers to all scrap purchasers. Several reasons justify the exclusion. First, if the Commission had attempted to obtain this information, its task would have reached enormous if not prohibiting proportions. Second, the information obtained contains the scrap purchases of practically every steel mill in the United States. These purchases account for between two-thirds and three-fourths of all the scrap used in the country and of this amount, 90 percent is purchased from broker-dealer sources. Third, the purpose of the proceeding was to open the market to Luria’s competitors who consist of other broker-dealers whose economic livelihood is directly affected by the size of the market freed from monopolistic control. The Commission was not required to include suppliers other than broker-dealers especially since their inclusion would not have substantially altered the result. Cf. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 364, n. 40, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1962). Petitioners also contend the Commission erred in its determination of the relevant market areas within which to measure the effects of Luria’s influence. The geographical divisions selected by the Commission were based on the natural gravitational effects of economic factors. The evidence indicates and the Commission was warranted in finding that transportation costs produced various clusters of scrap buyers and sellers. Cf. United States v. Philadelphia Nat. Bank, supra, 374 U.S. at page 358, 83 S.Ct. 1715; American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 398 (D.C.S.D.N.Y.1957), aff’d 259 F.2d 524 (2 Cir. 1958). As a rule sales were contained within an area having a radius of approximately 100 miles from the broker-dealer. Shipment beyond this distance became prohibitively expensive. Of course, at times sales were made to plants located more than 100 miles from the broker-dealer, but these long distance sales were an exception and occurred only when needs were such that the closer sellers were unable to meet demands. Petitioners urge that the theory of the Government’s case was based on Section 3 of the Clayton Act, 15 U.S. C. § 14, because of the emphasis placed on proof of agreements or arrangements between the various mills. They argue, therefore, that their actions and practices must be judged in reference to the standards governing cases arising under the Clayton Act. The error in petitioners’ argument is that it is clear that the proceeding was brought under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, to enjoin an incipient monopoly which if undeterred would violate Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Section 5 of the Federal Trade Commission Act proscribes a broad area. The unfair methods of competition violative of that section are not limited to practices violative of the Sherman Act, the Clayton Act or the common law. The Federal Trade Commission Act was designed as a supplement to and has been interpreted as a complement to the Sherman and Clayton Acts. Federal Trade Commission v. Motion Picture Advertising Service Co., 344 U.S. 392, 73 S.Ct. 361, 97 L.Ed. 426 (1953), rehearing denied, 345 U.S. 914, 73 S.Ct. 638, 97 L.Ed. 1348 (1953); Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L. Ed. 1010 (1948), rehearing denied, 334 U.S. 839, 68 S.Ct. 1492, 92 L.Ed. 1764 (1948); Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934); Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931). Speaking of the Commission and its function under the Federal Trade Commission Act, the Supreme Court stated: “Far from being regarded as a rival of the Justice Department and the district courts in dissolving combinations in restraint of trade, the new Commission was envisioned as an aid to them and was specifically authorized to assist them in the drafting of appropriate decrees in antitrust litigation. All of the committee reports and the statements of those in charge of the Trade Commission Act reveal an abiding purpose to vest both the Commission and the courts with adequate powers to hit at every trade practice, then existing or thereafter contrived, which restrained competition or might lead to such restraint if not stopped in its incipient stages.” Federal Trade Commission v. Cement Institute, supra, 333 U.S. at page 692, 68 S.Ct. at page 799. The same argument raised by petitioners here was considered and rejected by the Supreme Court in its recent decision in Federal Trade Commission v. Brown Shoe Co., 384 U.S. 316, 320, 86 S.Ct. 1501, 1504, 16 L.Ed.2d 587 (1965). The Court stated: “ * * * the Commission has broad powers to declare trade practices unfair. This broad power of the Commission is particularly well established with regard to trade practices which conflict with the basic Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Robert E. IANNELLI and Dolores Iannelli, his wife v. H. Alan LONG, District Director, Pittsburgh, Pennsylvania, and Johnnie M. Walters, Commissioner of Internal Revenue of the United States of America, successor to Harold T. Swartz, Appellants. No. 72-1418. United States Court of Appeals, Third Circuit. Argued Feb. 27, 1973. Decided June 29, 1973. Certiorari Denied Nov. 19, 1973. See 94 S.Ct. 541. Robert E. Lindsay, Tax Div., Dept. of Justice, Washington, D. C., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief Appellate Section, John P. Burke, John M. Brant, Attys. Tax Div. Dept. of Justice, Richard L. Thornburgh, Pittsburgh, Pa., of counsel, for appellants. James E. McLaughlin, McArdle, McLaughlin, Paletta & McVay, Pittsburgh, Pa., Charles Alan Wright, Austin, Tex., William A. Camp, of counsel, for appel-lees. Before HASTIE and ALDISERT, Circuit Judges, and DITTER, District Judge. OPINION OF THE COURT HASTIE, Circuit Judge. The order from which the government has taken this appeal enjoined the District Director and the Commissioner of Internal Revenue from seizing or selling, until further order of the court, any property of Robert Iannelli or his wife Dolores to satisfy jeopardy assessments against them for alleged failure to pay overdue federal wagering taxes. In its opinion, W.D.Pa.1971, 333 F.Supp. 407, the court explained that the purpose of this temporary injunction was to protect the taxpayers against possible necessity for self incrimination if, in normal course, they should undertake to establish in a civil suit a right to refund of sums collected pursuant to these assessments while criminal proceedings growing out of their alleged wagering business were pending. The government contends that the district court lacked jurisdiction to grant this injunctive relief because section 7421(a) of the Internal Revenue Code of 1954, U.S.C. § 7421(a), provides, with irrelevant exceptions, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”. The parties agree that section 7421(a) is comprehensive and that on its face it seems to prohibit such a suit and such an injunction as we have here. Cf. Enoch v. Williams Packing & Navigation Co., 1962, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292; Johnson v. Wall, 4th Cir. 1964, 329 F.2d 149. It reflects an evident purpose to protect the public revenue from court imposed delays in the collection of taxes, leaving aggrieved taxpayers to sue for refunds of any amounts improperly collected. Thus, the section presupposes a bona fide attempt of the government to collect revenue. Therefore, if a levy on property is in formal guise an effort to collect taxes but in fact is only a device for harassing and punishing a wrongdoer without honest anticipation that the levy may yield money owed for taxes, it is arguable that a suit to restrain the tax collector’s enterprise is not in reality a suit to restrain the collection of taxes. Accordingly, it is relevant to consider whether we have here a bona fide effort to collect revenue. The taxpayers do not dispute that they may owe the government substantial sums of overdue taxes, though they dispute the claimed amount of their total indebtedness. Moreover, at the time of the jeopardy assessment and resultant levies the taxpayers, who had not filed a complete inventory of their possessions, appeared to be the owners of mortgaged income producing rental property, a furnished home, a life insurance policy, bank accounts, automobiles and the contents of a safe deposit box. It is not disputed that in the aggregate the levies on their property were intended to and probably would yield substantial revenue, although in the district court counsel for the government conceded that at least some of the real property was so heavily mortgaged that a forced sale would not in likelihood benefit the government. Though one of the government’s objectives in this undertaking to seize all of the taxpayers’ discoverable property may have been to put economic pressure upon persons believed to be engaged in large scale criminal activities, the jeopardy assessment and consequent levies also appear to have been bona fide and potentially productive attempts to collect revenue. And bona fide efforts to collect taxes through lawful procedure are the very undertakings that Congress has protected through the enactment of section 7421(a) against frustration or delay by litigation. The district court was understandably and properly concerned that the taxpayers not be forced to choose between forfeiting their property without contesting the tax assessments on the one hand and, on the other, incriminating themselves by admitting in a tax refund suit that they had been engaged in an illicit enterprise for which they already had been indicted. But a tax refund claim and complaint adequate to toll the running of the statute of limitations could be drafted and filed without damaging admissions concerning the details or even the nature of taxpayers’ business. And further proceedings in such a suit would properly be deferred on the plaintiffs’ request until the conclusion of related criminal proceedings against them or until the running of all applicable periods of limitations on prosecutions. Cf. United States v. Kordel, 1970, 397 U.S. 1, 12 note 27, 90 S.Ct. 763, 25 L. Ed.2d 1; De Vita v. Sills, 3d Cir. 1970, 422 F.2d 1172, 1181. And in the unlikely case of an arbitrary refusal of a district judge to grant such a stay, the abuse of discretion would be reviewable in this court. For these reasons we have concluded that section 7421(a) of the Internal Revenue Code prohibits the relief granted to the taxpayers in this case. The judgment will be reversed. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_appel1_1_4	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. TEXAS HOTEL SECURITIES CORPORATION v. WACO DEVELOPMENT CO. No. 8192. Circuit Court of Appeals, Fifth Circuit. Dec. 28, 1936. Rehearing Denied Jan. 30, 1937. See, also, In re Waco Development Co. (D.C.) 15 F.Supp. 478. Robert Allen Ritchie and Nathaniel Jacks, both of Dallas, Tex., and E. Y. Boynton and Wm. E. Terrell, both of Waco, Tex., for appellants. J. D. Williamson, of Waco, Tex., and Claude P. Berry, of St. Louis, Mo., for appellee. Before SIBLEY and HUTCHESON, Circuit Judges, and STRUM, District Judge. Writ ofl certiorari denied Waco Development Co. v. Rupe, 57 S. Ct. 671, 81 L. Ed. —. SIBLEY, Circuit Judge. Waco Development Company on May 17, 1935, filed a petition for reorganization under Bankruptcy Act, § 77B (11 U. S.C.A. § 207), on the ground that it was unable to meet its debts as they matured. Besides a little cash it owned only the Roosevelt Hotel in Waco, Tex., and its equipment, put at a value depreciated to $602,361 but now fixed at $725,000; and its indebtedness besides taxes was an issue of negotiable gold notes or bonds secured by a mortgage on the hotel of $413,000 principal. Notes for $465,000 were originally issued, but $52,000 which matured prior to November 15, 1932, had been paid. $61,000 maturing since were in default. All of the notes are to mature by November 15, 1937. A plan of reorganization was put forth in the petition, of which it is enough for present purposes to say that it involves a lease of the hotel to Central Texas Hotel Company, the establishment of a sinking fund from the income of the hotel, the reduction of interest on the unpaid notes from 6 per cent, to 5 per cent, for five years beginning retroactively November 15, 1934, and a postponement of their maturity until November 15, 1944. This plan, after slight modification, was approved by the District Judge. Its approval turned on the acceptance of it by the class of gold note holders. More than a third of the gold notes, to wit, $149,100, were held by Texas Hotel Securities Corporation. That company, joined by the holder of $12,500 other notes, totaling 39 per cent, of the whole, dissented from the plan. The holders of 8 per cent, failed to appear and vote. The holders of $221,-000, or 53 per cent, of the whole, voted for the plan. The judge held that Texas Hotel Securities Corporation, although entitled to prove its notes and to participate in the results of the plan, had acquired them with the intent of preventing the debtor’s reorganization, and could not vote on the plan, and that its notes were not to be counted as in the class entitled to vote, so that the $221,000 of notes which were voted for the plan were two-thirds of. the whole voting class; but if otherwise that the judge had the right to confirm the plan as fairly and equitably providing protection to the nonassenting minority under section 77B (b) (5) (d) of the act. (11 U.S.C.A. § 207 (b) (5) (d). Texas Hotel Securities Corporation, joined by the other dissenting note-holder, has taken an appeal as of right under section 25 (a), as amended by Act Mav 27, 1926, § 10, 44 Stat. 665 (11 U.S.C.A. § 48 (a), and also applied for one in the discretion of this court under section 24 (b), as amended by Act May 27, 1926, § 9, 44 Stat. 664 (11 U.S.C.A. § 47 (b). The appellee, Waco Development Company, moves to dismiss the former and opposes the grant of the latter. The judgment appealed from decrees, among other things, “that Texas Hotel Securities Corporation is not entitled on its said bonds and its said claim of $149,100 for the purpose of voting to be considered a creditor whose claim has been allowed, or to vote or use its said claim as an allowed claim in the consideration and determination of the amount of each class of claims which has accepted said plan of reorganization; but the Texas Hotel Securities Corporation is entitled to participate on its bonds in the sum of $149,100 under the plan of reorganization on the same basis as other creditors of the same class”; and it decrees approval and confirmation of the plan. The decree is in the main one approving a plan of reorganization, and as such is not appealable as of right but only in the discretion of this court for revision in matters of law under section 24 (b). Meyer v. Kenmore Hotel Co., 297 U.S. 160, 56 S.Ct. 405, 80 L.Ed. 557. In so far as it deals with the claim of Texas Hotel Securities Corporation, proof of which in due form had been filed pursuant to the order of the court made when the debtor’s petition was approved, it recognizes the claim as true and correct for beneficial purposes, but holds that it cannot be counted or voted in determining the acceptance of the plan. This is not a judgment “rejecting a claim of $500 or over” fully appealable as of right under section 25 (a). It allows the claim but denies it the consequential right to vote on a plan. A ruling as to whether a creditor may vote his claim is incidental to the approval of the plan rather than to the allowance of the claim, and is to be reviewed in connection with the action taken on the plan. When a claim is offered to be proven its right to vote in some subsequent procedure is not the question, but only whether the claimant is actually a creditor, for how much, and with what if any securities, and the like. In ordinary bankruptcy the right to vote the claim for a trustee, or on accepting a composition, or on any other question in creditors’ meeting, would be considered only when those matters were reached for action. So under section 77B the proof of the claim as to ownership, amount, and nature should first be made, and after its allowance and classification its right to vote if challenged should be considered in connection with the approval of the plan. The right to vote on a plan is not a fixed incident of every allowed claim, but exists only when its class is affected by the plan and may vary as the plan is changed or modified. Determination of its voting rights depends upon the terms of the particular plan and is incidental to its approval or rejection, and is to be reviewed therewith by appeal under section 24 (b) rather than as the allowance or rejection of the claim under section 25 (a). The claimants 'here in addition to filing proofs of their claim intervened to assert them and to oppose the plan. The interventions were wholly unnecessary. The self-styled intervenors were creditors entitled to have their claims allowed and thereby to become full parties to the bankruptcy proceeding and to take any proper action as such. The interventions do not change the nature of the questions presented or of the rulings made, nor alter the remedy on appeal. The appeal under section 25 (a) is dismissed, and that under section 24 (b) is allowed. The denial of votability to the claim of Texas Hotel Securities Corporation is based on the purpose with which it ac-. quired its bonds. The special master who heard the witnesses testify found that the purpose of Hilton, who owns and controls the Securities Corporation, was “to exercise sufficient influence and control in the adoption of any plan for the reorganization of Waco Development Company to have the plan formulated along lines that would afford him an opportunity to recoup certain losses which the Hilton interests had sustained in the Waco-Hilton Hotel (the Roosevelt Hotel) ; that it was the intention of Hilton and his interests in purchasing said bonds to have the bonds accorded the same treatment as other bonds- and in addition thereto, if possible, to profit in some way as above set out; that the total cost to intervenor (the Securities Corporation) of notes now held by it was at least their par value.” On exception to' this finding the judge found that the Securities Corporation had legal title and that value was paid for the notes, but “with the intention and for the purpose of using-same to prevent and thwart the effort of the debtor Waco Development Company from accomplishing approval and confirmation, of any plan of reorganization under section 77B * * * by voting such block of 33i/2% of outstanding notes-against any plan proposed and submitted by the debtor.” The substituted finding is. attacked here as unsupported by evidence. The direct evidence of intention is given, by Hilton, who conducted the negotiations,, and by the president and vice president of the Securities Company, who participated.. They all testify that several months before the filing of this petition, in order to recoup in some way a loss that they felt had been unjustly visited upon the Hilton interests in connection with the hotel, they set about buying at least a third of these mortgage notes in view of a possible reorganization proceeding, and three days before the petition was filed, in co-operation with a capitalist, Greenwood, they bought the notes in controversy at prices ranging from 70 to 85, taking them over from. Greenwood a few days later, and beside-reimbursing Greenwood paying him as had been agreed an old debt of $25,000 which, he claimed. They all say that they did not intend to block any and all plans, but hoped to force one that would give them: again the operation of the hotel or otherwise reestablish an interest that they felt: they justly had in the property. The circumstances do not authorize a different conclusion. They are these: Waco Development Company in 1928 deeded to-Waco-Hilton Hotel Company (wholly owned by Texas Hotel Securities Corporation) a lot valued at $180,000. The Hotel Company built and furnished the Roosevelt Hotel with $465,000 raised on the mortgage gold notes here in controversy and abour $200,000 additional. The hotel but not the furniture was deeded back to Waco Development Company, which assumed the gold notes, and the Hotel Company took a ninety-nine year lease on the hotel. It made further extensive improvements not required by the lease. All went well till in 1932 patronage fell off due to the business depression and the lease got in default and a cancellation was threatened. The lessee sought relief in the state court under a Texas moratorium statute on March 20, 1934. A hearing was appointed for April 9th, on which day, upon a cross-petition, the lease was decreed canceled and an arrearage of $17,000 in rents established, with a foreclosure against the furniture. This swift justice was affirmed, Waco-Hilton Hotel Co. v. Waco Development Co. (Tex.Civ.App.) 75 S.W.(2d) 968, and in consequence the lessee lost all to the Waco Development Company. Subsequent negotiations by Hilton for reinstatement of the lease or other recognition were rebuffed. But Waco Development Company having bought everything in, found it necessary to reorganize, and after delay in proceedings before the Federal Securities Commission and in efforts to get a federal loan the present bankruptcy proceeding was begun. The plan of refinancing put forward by Waco Development Company before the Securities Commission and before the court included a long lease of the hotel, the hope being that better times would enable it to carry and pay the bonds as before 1932. It would be possible and not unlawful for the Hilton interests to be again the lessee. Hilton considered that Waco Development Company had been unjustly enriched, although within the law, by the misfortunes of “his hotel company, and may have thought as he says that some other recognition of his moral right might be agreed on and approved by the court. We do not think it can be held in the face of the testimony of himself and his associates that the intent was wholly obstructive, as found by the Judge, rather than hopeful of a lawful advantage to be openly gained, as found by the master. The evidence requires the finding made by, the master, and it was error in matter of law to overrule it. Therefore Texas Hotel Securities Corporation, which felt that it had a moral right in the hotel properties or perhaps an equity arising out of oppression, in contemplation of this proceeding bought up over one-third of a class of claims m order to have a veto on plans of reorganization; not, however, in malice or to embarrass justice, or surreptitiously to sell its vote, but to force recognition of a supposed right. We are of opinion that this does not authorize the disregarding of these notes as a part of the class to be affected. A debtor corporation, whether insolvent or merely unable to meet its debts as they mature, is not guaranteed by section 77B a right to a reorganization. It is given only the right to present a plan to its creditors and stockholders for their acceptance, with the advantage that the prescribed majorities in the classes affected can control unwilling minorities. No legal wrong is done the debtor if it cannot secure the required consents and is held to its original engagements, for that is but leaving to the creditors their original rights. Nor is it unlawful to transfer claims in anticipation of bankruptcy or during bankruptcy, and the transfer usually does not deprive the claim of any of its incidents. Shropshire v. Bush, 204 U.S. 186, 27 S.Ct. 178, 51 L.Ed. 436; In re Comstock (D.C.) 154 F. 747; In re Page Motor Car Co. (D. C.) 251 F. 318. Section 77B does not prohibit such transfer, nor put transferred claims in a peculiar class. The provision here important, paragraph (e) (1), § 77B (11 U.S.C.A. § 207 (e) (1), is: “A plan of reorganization shall not be confirmed until it has been accepted in writing * * * by or on behalf of creditors holding two thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan.” The voting class enbraces holders of allowed claims without requirement as to when or how they became holders. Allowance is, as we have held, a matter to be previously settled, subject to an appeal as of right; and the term “accepted” involves only the idea of consent and no duty of impartiality of decision as to the fairness of the plan. There is only a question of its acceptability to the creditor, and not of the justice or validity of his reasons. But the act fairly implies some cleanness of motive on the part of the affirmative majority since their will is not to be imposed on the minority unless the judge finds both that the plan is fair and equitable, and under paragraph (f) (6), § 77B (11 U.S.C.A. § 207 (f) (6), that “the plan and its acceptance are in good faith and have not been made or procured by any means or promises forbidden by this 'title.” .Also in paragraph (e) (1), § 77B (11 U.S.C.A. § 207 (e), is this requirement: “With súch acceptance there shall be filed a statement * * * showing what, if any, claims and shares of stock have been purchased or transferred by those accepting the plan after the commencement or in contemplation of the proceeding, and the circumstances of such purchase or transfer.” These provisions indicate that the information is to be considered by the judge in testing the fairness and good faith of the accepting majority, but they do not say that any creditor is to be deprived of his right .to accept or reject, or that the non-acceptors are to be investigated at all. The provision at the end of paragraph (b), § 77B (11 U.S.C.A. § 207 (b) about scrutinizing depository agreements and the like and limiting claims filed by committees and agents to the actual consideration paid for them has no application to the outright owner of notes, and would not limit the present claim because par value was paid. The precedents in common bankruptcy where transferred claims have been denied a vote involved securing affirmative action by tad faith votes, as in procuring the election of a trustee or the acceptance of a composition. In re Weintrob (D.C.) 240 F. 532; Fairbanks v. Amoskeag Nat. Bank (C.C.) 38 F. 630; In re Sawyer, 21 Fed.Cas. p. 559, No., 12,395. Contrast Ex parte Jewett, 13 Fed.Cas. p. 580, No. 7,303. Section 77B in order to impose a plan on dissenters requires an acceptance by two-thirds in amount of the affected class of creditors. Less than two-thirds cannot become two-thirds because some of the dis-' senters may be badly disposed. The act, paragraph (b) (5), § 77B (11 U.S.C.A. § 207 (b) (5), however, does recognize an exception to the requirement that two-thirds in amount of an affected class of creditors shall accept the plan when the plan “provide [s] adequate protection for the realization by them of the value of their interests, claims, or liens.” Several means by which such protection is afforded are mentioned which do not obtain here, and finally paragraph (b) (5) (d), § 77B (11 U.S.C.A. § 207 (b) (5) (d), “By such method as-will in the opinion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.” The decree under review is finally rested on this provision. We do not construe it to authorize the judge to approve any plan which he thinks fair and equitable. If this were intended, the statute could have been made much simpler and shorter. In this case he thought it fair and equitable to reduce the interest, even retroactively, and to extend for seven years or more the maturity of this mortgage debt. But if there had been a single unwilling mortgagee, that plan could not have been constitutionally imposed. Louisville Joint Stock Bank v. Radford, 295 U. S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A. L.R. 1106. No more could it be on an unwilling class of mortgagees. It is the consent of the specified majority that by a sort of democratic rule is made to be a consent for all which enables this act to control the will of dissenting minorities. The judge is not given the power, if it could be done, to substitute his judgment for the acceptance of a class of mortgage creditors. The words “such protection” refer back to the words “adequate protection for the realization by them 'of the value of their interests, claims, or liens.” Realization implies that what was in prospect has come to hand. Payment of the face of the claim in cash is the perfect realization of a money chose in action. But realization of the value of a claim or interest may be adequately secured by sale or appraisal of the thing which gives it value with the proportionate part of the value paid, or else the thing may be segregated and divided out in kind, or else left unaffected for the holder of the claim to proceed according to his unchanged contract. Such are the instances specially mentioned as adequate in subparagraphs (a), (b), and (c), par. (b) (5), § 77B (11 U.S.C.A. § 207 (b) (5) (a-c). There may be other cases of special circumstances in which adequate protection for realization of value can be worked out as contemplated by subparagraph (d). But when as here the property mortgaged is found to be worth nearly double the mortgage debt and the debtor is found to be solvent, it cannot be said that realization is adequately provided by scaling down the past and future interest and postponing the maturity of the principal for seven years. Compare Louisville Joint Stock Bank v. Radford, supra, 295 U. S. 555, at pages 594, 597, 55 S.Ct. 854, 865, 866, 79 L.Ed. 1593, 97 A.L.R. 1106. Thus interpreting subparagraph (d), par. (b) (5), § 77B (11 U.S.C.A. § 207 (b) (5) (d); and refusing to apply it in this case, we have no need to consider whether it would be constitutional if interpreted and applied as in the District Court. Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 57 S.Ct. 85, 81 L.Ed. —. We are therefore of opinion that the claim of Texas Hotel Securities Corporation has been allowed, and cannot be excluded for voting purposes from the class of gold noteholders because of any fact that has been established; that two-thirds in amount of the allowed claims in that class have not accepted the plan proposed; and that the plan does not provide such adequate protection for the realization of the value of claims of that class as will warrant dispensing with their consent. The judgment confirming the plan is reversed for further proceedings according to law and not inconsistent with this opinion. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. PEPSI-COLA METROPOLITAN BOTTLING COMPANY, Inc., Defendant, Appellant, v. PLEASURE ISLAND, INC., Plaintiff, Appellee. No. 6368. United States Court of Appeals First Circuit. May 10, 1965. Sydney Berkman, Boston, Mass., with whom Richard Braverman and Howard M. Miller, Boston, Mass., were on brief, for appellant. Jerome P. Facher, Boston, Mass., with whom S. Donald Gonson and Hale & Dorr, Boston, Mass., were on brief, for appellee. Samuel B. Stewart, Robert H. Fabian, Alfred T. Twigg, Los Angeles, Cal., for appellant. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Senior Circuit Judge (by designation). This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered on April 29, 1964, in an action to recover under a written lease for rent and other damages. The district court, sitting without a jury, found for the plaintiff in the total amount of $105,525.77, and on a counter-claim for the defendant in the total amount of $11,471.52, resulting in a judgment for the plaintiff in the net amount of $94,054.25. Appellant, Pepsi-Cola Metropolitan Bottling Company, Inc., is a New Jersey corporation having a principal office in New York and bottling plants in various states, including one in Allston, Massachusetts. The appellee, Pleasure Island, Inc., is a Massachusetts corporation operating an amusement park, known as Pleasure Island, in Wakefield, Massachusetts. The concept of Pleasure Island originated in 1957 or 1958 as an idea of William Hawkes, then editor of Child Life Magazine. Hawkes was president of Pleasure Island for a time but is no longer associated with it. Hawkes was put in contact with one C. V. Wood of California who previously had been Director of Stanford Research Institute and who also had been general manager of Disneyland. In 1958 and 1959 Wood was president of a small engineering concern known as Marco Engineering Company. When Hawkes returned east he devoted his efforts to the planning, designing, financing, and building of the amusement park that was to be known as Pleasure Island. Eventually the park began to take shape, and Pleasure Island then undertook to obtain lessees who would take space, construct exhibits, and advertise or sell their products. On or about March 26, 1959, a written contract between Pleasure Island and Marco Engineering was entered into, making Marco the exclusive leasing agent for the park. As opening day drew near, Hawkes himself also attempted to get leases. In the winter of 1958 several substantial New England firms had agreed to take leases at the park and to provide or construct exhibits. The theme of Pleasure Island was in part New England and in part the Wild West, and the exhibits and construction were consistent with this theme. The premises which are the subject of this litigation are known as the “Diamond Lil Saloon” or the “Western Saloon,” and are located in the so-called Western Area. The Western Saloon was approximately 2,700 square feet in area, and was decorated as an old-fashioned western saloon of the gas-light era with a mahogany bar for soft drinks and a stage for shows or performances. The interior fixtures and decorations were constructed at a cost of approximately $50,000, of which Pepsi-Cola paid one-half and Pleasure Island one-half. In December, 1958, Pepsi-Cola had been solicited in regard to renting the Western Saloon. They had rented somewhat similar premises at Disneyland, known as the Golden Horseshoe, and had put on a show there. By 1959 Pepsi-Cola had been at Disneyland for four or five years, and Pepsi-Cola officials were acquainted with C. V. Wood from his associations with Disneyland. The Coca-Cola company had been approached at about the same time. Hawkes and Wood had talked with two Coca-Cola executives, Frank Adams, head of local Coca-Cola bottling operations, and Frank O’Brien, regional sales manager for New England. Both Adams and O’Brien were aware that Pleasure Island wanted $25,000 for a five-year lease of the Western Saloon and that the first and last years’ rent was to be paid in advance. The Pleasure Island Board of Directors had placed a valuation of approximately $10 per square foot as the rental value of Pleasure Island generally and believed that $25,000 was a fair rental value for the Western Saloon. At some time in December, 1958, Wood spoke with one Richard Petrie, who was then executive vice-president of Pepsi-Cola. At a meeting and in a telephone conversation Wood told Petrie of the plans for Pleasure Island including the hoped-for success, financial and artistic, in the coming season. At this point the park was not in existence but only barely past the drawing board stage. In these conversations Wood sought to interest Pepsi-Cola in a five-year lease at $15,000 annually for the Western Saloon and to obtain a commitment from Pepsi-Cola to contribute $25,000 to the cost of constructing and furnishing the Western Saloon. Their negotiations for a lease at $15,000 per year did not ripen into a binding contract. Following his conversations with Wood, Petrie talked with Pepsi-Cola executives and thereafter told Wood that Pepsi-Cola would be agreeable to a five-year lease at $15,000 and to spending $25,000 to reimburse Pleasure Island for part of the Western Saloon. Wood reported this fact to the Board of Directors of Pleasure Island, but the Board did not approve a lease to Pepsi-Cola at $15,000 and reminded Wood of the $25,000 price put on the premises. Hawkes also expressed concern because at about the same time the premises had also been offered to Coca-Cola for $25,000 per year. Coca-Cola’s local representatives were interested and enthusiastic about the prospects of Pleasure Island and in fact had first contacted Hawkes shortly after October, 1958, and before Pepsi-Cola had begun its negotiations. Also, one Garrard, Coca-Cola’s vice-president in charge of national sales, had gone to Boston to assist the local representatives in negotiating for the availability of their products at Pleasure Island. After Wood’s meeting with the Pleasure Island Board of Directors, he telephoned Petrie, who was then in his office in New York. There was a conflict of testimony as to the exact nature of this telephone conversation between Wood and Petrie. Petrie testified as to his memory of it, and Linnell, a director of Pleasure Island, and Hawkes testified as to what Wood told them about this conversation. Wood did not testify. The trial court found that C. V. Wood asked Petrie whether Pepsi-Cola would agree to execute a five-year lease in which the yearly rental figure was raised from the $15,000 discussed in their earlier talks to $25,000; that he told Petrie that it embarrassed him to make this request but that it was necessary to do so because the Pleasure Island Board of Directors would not approve a lease at $15,000 per annum and because other representatives of Pleasure Island were then actively negotiating with Coca-Cola for a $25,000 per year lease. The trial court disbelieved Petrie’s claim that Wood told him Coca-Cola had made an offer of $25,-000, legally binding upon acceptance by the Pleasure Island Board of Directors; rather, it found that if the word “offer” was used at all, it was used in such a context as to indicate to an experienced businessman only that employees of Coca-Cola were then engaged actively in negotiating with Pleasure Island for a possible contract and lease. An increase from $15,000 to $25,000 was agreed to and the lease was executed on or about April 6, 1959, by Philip Rubenstein, then president of Pepsi-Cola. Thereafter, the sum of $50,000 was paid by Pepsi-Cola to Pleasure Island for the first and last years’ rent as the terms of the lease provided. Pepsi-Cola was sold exclusively in the park in 1959, and an expensive and good quality show was put on by Pleasure Island in the Western Saloon. The show was a popular attraction, and approximately 275,000 Pepsi-Cola drinks were sold in the Western Saloon. However, at the end of the 1959 season Pepsi-Cola was aware of what the season’s total attendance at the park was and the various problems with weather, construction, and other matters which affected attendance, as well as the park’s financial difficulties following the 1959 operations. Between September 80, 1959, and May 15, 1960, as Pepsi-Cola was aware, the park was trying to organize its financial affairs, deal with creditors, obtain new financing, and prepare for the 1960 season. Finally, in May, 1960, new capital to the extent of $134,000 was brought into the corporation, contributed by Messrs. Smith, Lee and Linnell. Problems with creditors were largely resolved, and Pleasure Island prepared to and did reopen for the 1960 season. The lease contained a provision that Pepsi-Cola should have an option by written notice to Pleasure Island on or before March 1 of each year to require the latter to operate the Western Saloon and to supply the entertainment. Pepsi-Cola never exercised this option in 1960 despite a reminder by Pepsi-Cola’s general manager in Boston, McCaffrey, and Pepsi-Cola thereby became obligated to put on a show at its own expense. The cost of the show put on by Pleasure Island in 1959 was approximately $50,000. On May 4, 1960, McCaffrey forwarded newspaper clippings to Pepsi-Cola executive offices in New York indicating the park would reopen. On May 16, 1960, Pepsi-Cola wrote a letter to Pleasure Island purporting to terminate the lease. On May 24, 1960, Pleasure Island notified Pepsi-Cola that it had wrongfully repudiated the lease. Ultimately Pleasure Island brought suit in 1962. Pepsi-Cola failed to pay any rent to Pleasure Island in 1960, 1961, and 1962. The Western Saloon premises were available to Pepsi-Cola, but they did not attempt to utilize them or exercise any rights with respect to them. Although the premises thus remained available, Pleasure Island continued in 1960 to put on a show consisting of old-fashioned movies and cartoons and to operate the Western Saloon itself. It also attempted, without success, to relet the premises to someone else. The trial court found that Pepsi-Cola owed Pleasure Island a total of $75,000 for the years 1960, 1961, and 1962, with interest, for unpaid rent. It also found that there was no evidence of any credit to which Pepsi-Cola was entitled for whatever net income Pleasure Island may have derived'from the use of the premises during those years. The trial court further found that Pepsi-Cola owed Pleasure Island $5,441.00, with interest, for five insurance premiums; $1,235.00 with interest for real estate taxes paid by Pleasure Island; and $10,000 as a reasonable attorney’s fee. The trial court found for Pepsi-Cola on two counterclaims, in the total amount of $9,-083.45, with interest. Pepsi-Cola’s first major contention on this appeal is that the trial court erred in finding that Pepsi-Cola was not induced by Pleasure Island to enter into the lease by a false representation of an offer by Coca-Cola. The trial court declined to believe Petrie’s testimony, that Wood represented to him that Coca-Cola had made a firm offer of $25,000, which would become legally binding on Coca-Cola if the Pleasure Island Board of Directors elected to accept it. Instead, the court found that if the word “offer” entered into the conversation at all, it was used in such a context as to express no more than that Coca-Cola employees were actively engaged in negotiation with Pleasure Island for a possible contract. Further, the court found that, even assuming that such statements as to Coca-Cola were untrue, they were not relied on by Pepsi-Cola and were not in any degree an important or material inducement or persuasion to enter into the lease. Pepsi-Cola takes issue with the entirety of these findings, urging that they are clearly erroneous and that the truth of the matter is that Pepsi-Cola was induced to enter into the lease by Pleasure Island’s false representation, through its agent Wood, that Coca-Cola had made an offer of $25,000. The only direct evidence of a representation that Coca-Cola had made an offer was Petrie’s testimony to that effect. This the trial court declined to believe. Such a finding of a trial court, dependent upon oral testimony where the candor and credibility of the witness would best be judged, has great weight with this court. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Having no definite and firm conviction that a mistake has been committed in this respect, we believe that the court’s finding should stand. Beyond that, however, we are not in accord with the district court as to the inferences it drew in concluding what Wood did tell Petrie and what effect the conversation did have on Pepsi-Cola’s agreeing to a lease at $25,000 rather than $15,000. It would seem to us that in all probability what happened was that Wood reported to Petrie on the state of negotiations with Coca-Cola and on the Pleasure Island Board’s displeasure with a tentative offer to Pepsi-Cola below the authorized figure of $25,000. A careful review of the testimony at the trial indicates that it no doubt appeared at the time that Coca-Cola was very near to agreeing to a lease at $25,000. Indeed, it must have seemed to Wood — and it probably seemed to Petrie — that Pepsi-Cola would have to agree to $25,000 to remain in the running. It may fairly be inferred that it was in reliance on this belief that Petrie agreed to $25,000. The record tends to support this conclusion. Hawkes’ and Linnell’s testimony indicates that considerable interest was shown by local Coca-Cola representatives in being a part of Pleasure Island. Hawkes said there was “a great deal of enthusiasm. He [Mr. Adams] wanted, as I recall, five or six days in which to come back with an answer.” Again, “Mr. Adams and Mr. O’Brien were quite keen on the idea of Pleasure Island and in my best judgment wanted the deal. However, it was also my understanding that a move could not be made until at least they had some sort of approval by the president of the company, but they expected to have that within four or five days.” And, “Mr. Adams particularly was very excited about the project and definitely wanted to bring his company into it.” To the best of Hawkes’ memory, the expression of interest originated with Coca-Cola, and the local representatives were “upset” when eventually they did not have the opportunity to come in. Linnell testified that Hawkes had told him that Coca-Cola was very much interested at $25,000; in fact, he said it was his impression that they had an “agreement” with Coca-Cola, i. e., that they had “an understanding with local officials, they would proceed to close an official deal with us.” In addition to this interest by local representatives, interest was also shown by the parent company in Atlanta. One Garrard, vice-president in charge of national sales, traveled to Boston to meet with Hawkes and Wood. Hawkes understood the purpose of the visit was to get the needed approval. Garrard himself said, in a deposition, that he was “sure” he “listened very attentively” and that he probably said he would “go back to Atlanta and take it up with our people, * * * and that I would be back in touch with them.” It was against this background that Wood contacted Petrie and caused him to meet the $25,000 figure being negotiated with Coca-Cola. It is unlikely he told Petrie Coca-Cola had actually made an offer of $25,000. He knew there was no actual offer, since he had been present when Garrard said he would have to take up the $25,000 figure with officials in Atlanta. Beyond that, the record discloses no particular reason why Wood should misrepresent the state of negotiations with Coca-Cola. It is just as likely he was attempting to protect Pepsi-Cola’s interests. Petrie testified that Wood was friendly with certain people in Pepsi-Cola, and that he had “pleasant relations with Pepsi-Cola at Disneyland.” According to Linnell, “Mr. Wood argued for the fact that he should have a right to go back to Pepsi-Cola and ask them to agree to the deal of $25,000.” There is no compelling reason to believe that Wood then contacted Petrie and told him Coca-Cola had made an offer, when he knew that was not true. It seems much more likely, viewing the matter most favorably to Pepsi-Cola, that Wood told Petrie there was an agreement with local Coca-Cola representatives and that approval was being sought from officials in Atlanta, which approval might be forthcoming. In any event, we do not think the record sustains proof of any more than that. The question remains whether this statement, assuming it to be the substance of what Wood told Petrie, amounted to such a misrepresentation as would justify rescission of the lease by Pepsi-Cola. It is the rule in Massachusetts that “one who has been induced to enter into a contract in reliance upon a false though innocent misrepresentation of a material fact susceptible of knowledge which was made as of the party’s own knowledge and was stated as a fact and not as a matter of opinion is entitled to rescission.” Yorke v. Taylor, 332 Mass. 368, 124 N.E.2d 912, 914, 915 (1955). It is also the rule in Massachusetts that “false statements of opinion, of conditions to exist in the future, or of matters promissory in nature are not actionable.” Yerid v. Mason, 341 Mass. 527, 170 N.E.2d 718 (1960). We think the latter rule is applicable here. At the very most, the record indicates that Wood may have said that there was an agreement with local Coca-Cola representatives and that he thought Garrard would secure approval of that agreement in Atlanta. The testimony discloses that there was indeed considerable agreement with the local representatives ; as to that matter, then, there could have been no real misrepresentation. And, as to whether Atlanta’s approval would be forthcoming, Wood could do no move than give his opinion. That was a matter not susceptible of Wood’s knowledge, as Petrie must have known. “When a representation relates to a matter not susceptible of personal knowledge, it cannot be considered as anything more than a strong expression of opinion, notwithstanding it is made positively and as of the maker’s own knowledge. * * * ” Harris v. Delco Products, 305 Mass. 362, 25 N.E.2d 740, 742 (1940). Wood could not have known whether Coca-Cola executives would ultimately approve a lease at Pleasure Island. He could only conjecture, and Petrie could only accept what he said as conjecture. The fact that Pepsi-Cola may have relied on Wood’s conjecture and accepted a $25,000 figure to keep Coca-Cola out of Pleasure Island may be unfortunate for Pepsi-Cola, but it cannot -relieve them from their lease. Pepsi-Cola’s second major contention is that the lower court erred in finding that Pleasure Island’s continued operation of the Western Saloon as a theatre did not constitute an acceptance of surrender by operation of law. “[A]ny acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises amount to a surrender of a term by operation of law. * * * There must be a meeting of the minds and the intent of the landlord to accept the surrender must be clearly shown.” Cassidy v. Welsh, 319 Mass. 615, 67 N.E.2d 226 (1946). That intent is not proved, however, when it is shown that the tenant never was excluded from the premises and that the use of the premises was consistent with the landlord’s right to protect his property. Bandera v. Donohue, 326 Mass. 563, 95 N.E.2d 654 (1950); Roberts v. Wish, 265 Mass. 179, 163 N.E. 892 (1928). There was testimony in the court below that the Western Saloon remained available to Pepsi-Cola and that in fact the velvet “Pepsi-Cola” curtain remained hanging. It also appears that Pleasure Island kept the Western Saloon open to protect its overall investment in the park: Pleasure Island’s president in 1963 testified that it “seemed wrong” to leave a key exhibit locked up or vacant. The question is thus raised, whether the circumstances presented by this case —continued, complete occupancy of the theatre — require us to apply the doctrine of acceptance of surrender. The Massachusetts case closest on its facts to the instant one is Bandera v. Donohue, supra. That case involved leased premises consisting of a basement in which classes of fifty to sixty members were held two or three times a day, although not between the hours of 11:00 p. m. and 9:00 a. m. Many persons resorted to various other parts of the building and also frequented the corridors at different times during the day and night in entering and leaving the building. After the tenant vacated the premises, the landlord commenced to permit the janitor, whom he employed to care for the building, to use as sleeping quarters a portion of the demised premises. The trial judge found that there was no acceptance of a surrender by the owner; the Supreme Judicial Court affirmed, declining to hold as a matter of law that there was. While it can readily be seen that the use of the vacated premises was far more extensive in the case now before us, the Bandera case nevertheless is important for its lesson: that a landlord is not required to allow vacated premises to remain empty and unprotected. The case is important as well in the significant language it employs: “For aught that appears, the duration of his [the janitor’s] use was revocable at the will of the landlord and presumably was for so long as the premises remained vacant and needed protection from persons who resorted to the building at night. This use by the janitor did not interfere with the rights of the defendants to the demised premises or preclude them from enjoying them in accordance with their lease if they saw fit to occupy them. They were still held available to them by the landlord. The conduct of the landlord in dealing with the premises could be found to be not inconsistent with an intent not to terminate the relationship of landlord and tenant existing between him and the defendants [the tenants]. * * * ” 95 N.E.2d at 656. We are of the opinion that the differences in the facts between that case and the case before us are caused not by a different intention of the landlord, but rather by the different exigencies created by the tenant’s vacating of the premises; and that Bandera is therefore, controlling here. As in Bandera, Pleasure Island gave Pepsi-Cola written notice of its intent to hold them to the lease. It is apparent from the record that Pleasure Island’s motive in operating the theatre itself may have been to protect the investment in the park and that there may have been no intent by officials of the park in the meantime to exclude Pepsi-Cola or prevent their return. In any event, the trial judge was entitled to believe testimony to that effect. We do not agree with Pepsi-Cola that the Bandera case may be distinguished on the basis of the fact that the janitor used the room only during the night hours, when the tenant was not customarily in actual possession of the premises. There is nothing in the opinion in that case to indicate that the tenant was not as much entitled to use the premises at night as during the day. Rather, we take the fact of the janitor’s nighttime occupation as being only evidentiary of a lack of intention to exclude. If the use of the premises in the case before us seems more “total and complete,” it should be noted that protection of the premises by Pleasure Island perhaps demanded totalness and completeness in a physical sense. In any event, we do not think the difference is controlling. The district court found that the premises remained available to Pepsi-Cola and that there was good reason for Pleasure Island’s use of them. We are not inclined to find otherwise as a matter of law. Having based our decision on principles of landlord and tenant, we do not reach Pepsi-Cola’s contention that Pleasure Island failed to give notice of default in rent, as required by the lease. Pleasure Island did not choose to pursue the remedy available to it under the lease. During the trial the court excluded portions of a deposition taken of Philip Rubenstein, vice-president of Pepsi-Cola, and formerly its president. It was excluded under Fed.R.Civ.P. 26 (d) (3) on the ground that his absence more than 100 miles from trial had been procured by Pepsi-Cola, and Pepsi urges this as reversible error. The portions of the deposition offered contained testimony to the effect that the decision to terminate the lease was made by O’Donnell and that his motivation was that he had learned that Coca-Cola had not made any offer. There was testimony by Petrie to the same effect elsewhere in the record. While there is no iron-clad rule with respect to cumulative testimony we conclude there was no prejudicial error in this instance. We, therefore, do not decide whether the trial court erred in excluding it. We have considered the other points raised by Pepsi-Cola and have concluded that they are without merit. Judgment will be entered affirming the judgment of the district court. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. PLANT v. WHITE RIVER LUMBER CO. No. 10017. Circuit Court of Appeals, Eighth Circuit. March 4, 1935. J. B. Daggett, of Marianna, Ark., and J. G. Burke, of Helena, Ark. (John P. Lee, of Clarendon, Ark., John W. Moncrief, of Stuttgart, Ark., John I. Moore, of Helena, Ark., C. E. Daggett, of Marianna, Ark., and John I. Moore, Jr., of Helena, Ark., on the brief), for appellant. Thomas S. Buzbee, of Little Rock, Ark. (H. T. Harrison, A. S. Buzbee, and Edward L. Wright, all of Little Rock, Ark., on the brief), for appellee. Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges. VAN VALKENBURGH, Circuit Judge. This is an action at law for breach of an alleged contract for cutting timber. Ap-pellee is a corporation with a capital stock of $220,600, organized under the laws of the state • of Michigan, and authorized to do business in the state of Arkansas. It was the owner of 45,000 acres of timberland in four counties of the latter state. For- a time, in connection with such ownership, it operated a sawmill and lumber yard in the town of Clarendon, Ark. Its home office was at Kalamazoo, Mich. One W. W. Keaton of Clarendon, Ark., was employed by said appellee as “Manager of Logging Operations in the State of Arkansas,” on the terms and conditions of a written contract, dated July 15, 1919. This contract provided that, as such manager, Keaton should devote his entire time and energy to the business, should have surveys made of appellee’s holdings, employ men necessary to the work, market the product, attend to the payment of taxes, and perform such services as might be required in the state of Arkansas in the interest of appellee. It was' stated that the logging operations were to be conducted on a large scale, and it was hoped to produce an output of twenty million feet per annum. A salary of $400 per month was stipulated, and the term of employment was thus fixed • “It is understood this agreement shall continue for the period of one year from this date, provided, however, that either party to this agreement may terminate the same upon giving the other party ninety days’ notice’ to that effect in writing.” This contract was continued from year to year without change except in the amount of the salary. Keaton continued to work for appellee until May 31, 1929. The business at first consisted in buying and selling logs, and in making contracts for that purpose. In 1925, however, the company built a sawmill and established a lumber yard at Clarendon, Ark. This mill was operated until late in 1927. The mill had a capacity of about 800,000 feet of logs per month; and, during the period of its operation, the business of the company was confined chiefly to the purchase and procurement of logs to feed that capacity. In his position as manager of logging operations Keaton made seasonal contracts for the cutting and purchase of logs incidental to the conduct of appellee’s business. These contracts were for comparatively small amounts, the largest, shown involving not more than 2,000,000 feet, and all requiring completion seasonably, and within a few months from their date. January 20, 1927, is the date of the alleged contract upQn which this litigation is founded. By its terms appellant was granted the right, for the compensation therein named, to cut all the merchantable timber owned by appellee in the state of Arkansas. It is conceded that the amount of timber thus contracted to be cut was about 120,000,000 feet. The contract provided for a minimum cut of 10,000,000 feet of logs per year, at a price which called for a minimum expenditure of $75,000 per year, or a minimum total pf about $1,000,-000 for the twelve years, which would be required, at this rate, to cut and remove the timber from appellee’s lands. The contract purports to be signed by Keaton, as manager, on behalf of appellee. It is to be noted that this contract undertook to provide not merely for the current requirements of appellee’s business, but, rather, for the disposal of the entire timber holdings of appellee in the state of Arkansas, and required an expenditure, over the twelve years, necessary to its performance, of more than four times the entire capital stock of the lumber company. The contract was -not authorized by the board of directors of the company, nor was it brought to the attention of its officers, or Mr. Altland, its then managing director. Nothing was ever done under it. September 23, 1933, appellant brought suit in a state court, alleging that appellee had breached the contract by refusal to perform, and by disposal, in 1929 and 1930,-of a large quantity of its timber to other people. Damages for loss of profits were laid at $155,000. This action was removed to the District Court of the United States for the Eastern District of Arkansas. Upon trial, at the close of the testimony, that court, on motion, directed a verdict in favor of appellee. This action of the trial court is the main error assigned in this appeal. The case turns largely upon the authority of Keaton to bind appellee by the contract in suit. Concededly he had no express authority to do so, and the question presented is whether such authority is implied from the nature of his employment. Appellant invokes the conceded rule that “the law implies that the agent is authorized to do and perform all acts reasonably necessary and proper to carry into effect the main authority conferred.” Appellee relies upon the equally sound converse of this proposition; that is, “that the principal is not bound by the acts of an agent which are not within the scope of the duties ordinarily conferred* upon agencies of that character, nor when the transaction is of a nature so unusual and extraordinary that the other party should be put upon inquiry to ascertain the authority of the agent.” In determining the class to which Keaton’s agency belongs it is necessary to consider some significant features of the business of appellee, the nature of Keaton’s activities, and the scope of the transaction covered by the contract in suit. Keaton was not a general agent in the accepted sense of that term. He was manager of logging operations, which consisted in procuring logs by purchase from others, or by cutting and hauling from appellee’s own lands, to be worked in its sawmill at Clarendon, and disposed of in the form of lumber from its yard at that place. True, Keaton was given liberal authority within this sphere; but manifestly that authority was restricted to what was incidental to the express character of his employment, and did not extend to the exercise of those powers inherent exclusively in ownership. Such powers were vested in a board of directors, as the governing body of the corporation, and, in that body, one of its number, D. F. Altland, had been especially designated as the managing director. In his letter to Mr. Altland of October 11, 1927, nearly nine months after the date of the contract in suit, Keaton makes no mention of it, but says, “We are getting all of our log supply from outside sources.” At no time did he 'submit this contract to the lumber company, nor did he seek authority from its board of directors, nor from any one who could have been conceived to have jurisdiction over it. Not only so, but in letters to other parties, beginning in April, 1927, and extending to August of that year, he solicited logging operations apparently inconsistent with an existing contract with appellant Plant. To one A. N. Roberts of LaGrange, Ark., he wrote as follows April 13, 1927: “We are ready to begin making our plans for logging the coming season and would like to see you as soon as it is convenient for you. We have several offers from parties who want to take over all of our logging and we have concluded that we would like to handle it that way, and as you have been logging for us we want to give you the preference if you can do the work at the same price.” In a letter to H. H. Ramsey of St. Charles, Arkansas, dated August 27, 1927, he said: “We note that you have bought about 80 M' on railroad and if you can get these loaded out in time for the Wednesday morning local they will reach us in time to prevent us from having to shut down next week. Please get after these people and see that they load them promptly.” Keaton explains as his reason for making the Plant contract that the logging operations had been carried on by farmers who would only log part of the year; that these farmers did not know how to cut and put out the logs to advantage, and that damage to the timber and increased costs had resulted; that appellant had sold logs to the company at different times; that his logging operations for the company had been satisfactory; that “Plant had a good outfit, and it was natural that he should prefer giving him the logging job.” The foregoing would seem to furnish a sound reason for making contracts within seasonal periods and carefully limited; but lends no support to committing appellee to an arrangement whereby its entire timber assets were to be disposed of at great cost, and over a protracted period, without reference to the business hazards that might be encountered during that period. It would seem that nothing short of formal action by the governing body of the corporation could justify such drastic action. Those potential hazards, against which sound business judgment must ever be on guard, became^ realities. Persistent floods in 1927, 1928, and 1929, overflowed the town of Clarendon, destroying the mill yards of the White River Lumber Company. The depression followed, and the company found it necessary to make sales of its timber lands. Nothing whatever has been done under this contract of date January 20, 1927.-Appellant has incurred no expense in the way of preparation and equipment. He explains his failure to enter upon the logging activities, covered in the contract, by the existence of floods in 1927, 1928, and 1929, which would have made the removal of timber during those years unprofitable, and says he waited for some time at the request of Keaton. He states the breach upon which he sues as follows: “In violation of the aforesaid contract and without the knowledge or consent of plaintiff, defendant, in the latter part of the year 1929 and by the first day of January, 1930, sold a large quantity of said timber to other people and still later and in violation of the contract with plaintiff and without the knowledge or consent of plaintiff sold another large quantity of said timber to other people.” It is significant that this suit was not filed until nearly three years after the date last mentioned, and nearly six years after the contract purports to have been executed. There is much in the record to cast doubt upon the existence of a valid and enforceable contract in the minds of Keaton and appellant, but, from the standpoint of a directed verdict, we do not place our conclusion upon that ground. In our judgment Keaton had no authority to bind appellee by a contract so unusual in its nature and so manifestly beyond the reasonable scope of his employment. And we think, in any event, that the circumstances were such as to charge appellant with notice of the apparent limitations upon Keaton’s authority. The inquiry demanded would have disclosed that authority was lacking. Counsel for appellant have cited many decisions of this and other courts to the effect that, in considering motions for directed verdicts, the court must ascribe to plaintiff’s evidence and the inferences therefrom the most favorable aspect warranted thereby; that, though the facts be undisputed, the question is for the jury if different inferences may reasonably be drawn from such facts; that, ordinarily, the credibility of witnesses is for the jury; and that a corporation cannot deny the authority of its agents to make contracts apparently within the scope of their authority, where such contracts are not ultra vires. Manchester Mill & Elevator Co. v. Strong (C. C. A. 8) 231 F. 876; Swift & Co. v. Detroit Rock Salt Co. (C C. A. 6) 233 F. 231; Chicago & N. W. Ry. Co. v. Struthers (C. C. A. 8) 52 F.(2d) 88; Asher et al. v. United States (C. C. A. 8) 63 F.(2d) 20; Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co. (C. C. A. 8) 64 F.(2d) 834; Union Indemnity Co. v. Home Trust Co. (C. C. A. 8) 64 F.(2d) 906; Chicago, M. St. P. & P. R. Co. v. Linehan (C. C. A. 8) 66 F.(2d) 373; Wharton v. Ætna Life Ins. Co. (C. C. A. 8) 48 F.(2d) 37; Wisconsin & Arkansas Lumber Co. v. Day (C. C. A. 8) 35 F.(2d) 563; Lyons Milling Co. v. Goffe & Carkener, Inc. (C. C. A. 10) 46 F.(2d) 241, 83 A. L. R. 501. There can be no' question of the soundness of these principles announced where applicable, but we do not think their application demands a disposition of this case favorably to appellant. The question here is not whether Keaton was authorized to make contracts, but whether he had apparent and ostensible authority to bind his principal to an arrangement whereby its entire property in the state of Arkansas was to be disposed of, and its business activities in that state placed beyond the control of its governing body for the protracted period of twelve years. Keaton’s employment was for a period of one year and was subject to termination upon ninety days’ notice at any time. Giving to all the testimony and evidence offered its full probative effect, it is at least doubtful if either Keaton or Plant regarded this contract as effective beyond the ordinary seasonal period, if at all. However, courts generally have dealt satisfactorily with similar situations. There is a difference between general authority to bind a principal in the course of a known business, and one to dispose of the entire corpus of a corporation. Anderson-Tully Co. v. Gillett Lumber Co., 155 Ark. 224—234, 244 S. W. 26. , The general manager of a corporation has no implied authority to bind it by a sale of its physical properties. Nor.can such a sale, if made, be ratified by officers of the corporation, who, themselves, have no such power. Morning Star Mining Co. v. Bennett, 164 Ark. 244, 251, 261 S. W. 639. The “authority to enter into such unusual and far-reaching contracts cannot lightly be implied. * * * The general and salutary rule undoubtedly is, that authority to enter into contracts of employment for a term of years or for life is not to be implied from the power of management; and it is a matter of grave doubt whether a board of directors, elected for one year, can expressly authorize contracts that deprive succeeding boards of their statutory powers of management.” General Paint Corporation v. Kramer (C. C. A. 10) 57 F.(2d) 698, 703. Counsel for appellant criticise this citation upon the ground that it involves an employment contract, and that the rule of law announced is not applicable here. This basis of distinction is not well-founded. The rule applies to all cases which involve the power of an agent and its reasonable exercise. Compare Floyd Acceptances, 7 Wall. 666, 19 L. Ed. 169. “No presumption of law can be indulged in that, because a person acts as such a manager, he has the power to bind his principal to contracts of an extraordinary nature, and of such a character as would involve the'corporation in enormous obligations and for long periods of time.” Camacho v. Hamilton Bank Note & Engraving Co., 2 App. Div. 369, 37 N. Y. S. 725, quoted with approval in Laird v. Michigan Lubricator Co., 153 Mich. 52, 116 N. W. 534, 535, 17 L. R. A. (N. S.) 177. “A general agent has no implied authority to bind his principal by contracts unusual to agencies of like character, or beyond the usual scope of such agencies; and when he attempts to bind his principal by his extraordinary acts, the one dealing with him is put upon notice, and required to ascertain from some authoritative source whether such agent had the power to bind his principal thereby. “One who has been employed as a field superintendent of logging operations, with authority to have timber cut from time to time as needed for a corporation, his principal, and subject to be discharged at any time, has no implied authority to bind his principal with an indefinite contract for cutting the timber from a large tract of land which might last for years, and involving the expenditure of many thousands of dollars, and in an action to recover damages for a breach of the contract it is necessary for the plaintiff to show that the agent had express authority or that the principal ratified his act.” Chesson v. Richmond Cedar Works, 172 N. C. 32, 89 S. E. 800, L. R. A. 1918E, 6. In the foregoing case the contract was made by a field superintendent of logging operations, with authority to have timber cut from time to time as needed. It authorized Chesson to cut and top all the merchantable juniper timber of the defendant company upon a tract of 5,000 or more acres. The operation of the contract might have extended over twenty years, and the amount of the compensation claimed .might have aggregated $60,000. Compare Rennie v. Mutuai Life Ins. Co. (C. C. A. 1) 176 F. 202. In Pennsylvania Taximeter Cab Co. v. Cressey (C. C. A. 3) 191 F. 337, it was held that the fact that an officer of a taxicab company, acting under authority from the company, employed an insurance broker to place insurance on its cars from time to time as new cars were purchased or existing insurance expired, gave such officer no implied authority to bind the company by a contract to give the broker all of its insurance business for a term of three years or for any other term. In the case before us no ratification of Keaton’s action is shown, nor estoppel by reason of part performance or expenditure made in reliance upon the agent’s authority to contract. Where there is no substantial dispute as to the facts, “whether the contract is reasonable, is for the court, and not for the jury.” Carney v. New York Life Ins. Co., 162 N. Y. 453, 57 N. E. 78, 79, 49 L. R. A. 471, 76 Am. St. Rep. 347. “It is the duty of the trial court to direct a verdi-ct at the close of the evidence in two classes of cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, but is of so conclusive a character that the court, in the exercise of a sound judicial discretion, ought to set aside a verdict in’opposition to it.” New Amsterdam Casualty Co. v. Farmers’ Co-op. Union (C. C. A. 8) 2 F.(2d) 214, 215, and cases cited. “Upon a motion for a peremptory instruction the question is not whether there is literally no evidence, but whether there is any upon which a jury can properly find a verdict for the party producing it, upon whom the onus of proof is imposed.” Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720. We think the action of the trial court in sustaining the motion of appellee for a directed verdict is amply sustained by the record. Two assignments as to exclusion of evidence require attention. It appears that Mr. William K. Wallace became president of the lumber company either late in 1927 or in 1928. In the course of the trial, the following took place: “Q. (By counsel for appellant) Tell the jury whether or not this contract with Mr. Plant was ever discussed with Mr. Wallace or not? A. Mr. Wallace came to Clarendon in, I don’t remember the date, it was the first time I had ever seen him. “Mr. Buzbee: I object to that, if the court please, for the same reason that objection was made to other testimony. This was long after the contract was made. “The Court: I don’t think it is competent, Mr. Daggett, unless you could show a proper ratification of the contract by the proper officers of the company. Of course any conversation you might have had, with any individual stockholder or director would not be proper to show the power and authority to make this contract. “Mr. Daggett: How about the president of the company? “The Court: No, it would not show that he had authority. “Mr. Daggett: I want to note an exception to that. I want to call the court’s attention to this, if your honor please, and they state in their answer, their answer here, that they plead lack of knowledge and that he had no authority to make this contract. “The Court: They did not know anything about it until it was executed, and not before.” It will be noted that no offer of proof was made, and there is nothing in the record to show the purpose or possible effect of the testimony sought to be elicited. If we may assume that that purpose was to show ratification of the contract 'in suit, such ratification by the president, if attempted, would have been ineffectual. Counsel also complain of the action of the trial court in refusing to permit the introduction of a letter to Keaton from David F. Altland, managing director of appellee, dated January 21, 1930. That letter contained the content of a resolution adopted by the board of directors of the White River Lumber Company, as follows: “It was moved by Mr. Altland and seconded by Mr. Campbell that the treasurer pay Mr. William Keaton his salary of $500.-00 for the month of May, 1929, within thirty days from January 20, 1930; and that the directors of the White River Lumber Company go on record as being of the opinion that Mr. Keaton, during his management of the company, rendered faithful and efficient services.” This resolution contains no reference to the contract in suit, nor any intimation that anything respecting it had been before the board. It was clearly incompetent. The allegations of appellant’s complaint are that appellee’s actions had been antagonistic to the terms of said contract long prior to the date of the Altland letter. Being of opinion that the motion for a directed verdict was properly sustained, we hold that the judgment below should be, and is, affirmed. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. COMMUNITY HEALTH SERVICES OF CRAWFORD COUNTY, INC., et al. No. 83-56. Argued February 27, 1984 Decided May 21, 1984 Deputy Solicitor General Getter argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Carolyn F. Corwin, William Ranter, and Richard A. Olderman. Raymond G. Hasley argued the cause for respondents. With him on the brief was Brian W. Ashbaugh Jack N. Goodman filed a brief for the National Association for Home Care et al. as amici curiae urging affirmance. Justice Stevens delivered the opinion of the Court. Under what is recognized for present purposes as an incorrect interpretation of rather complex federal regulations, during 1975, 1976, and 1977 respondent received and expended $71,480 in federal funds to provide health care services to Medicare beneficiaries to which it was not entitled. The question presented is whether the Government is estopped from recovering those funds because respondent relied on the express authorization of a responsible Government agent in making the expenditures. Under the Medicare program, Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. §§ 1395-1395vv, providers of health care services are reimbursed for the reasonable cost of services rendered to Medicare beneficiaries as determined by the Secretary of Health and Human Services (Secretary). § 1395x(v)(l)(A). Providers receive interim payments at least monthly covering the cost of services they have rendered. §1395g(a). Congress recognized, however, that these interim payments would not always correctly reflect the amount of reimbursable costs, and accordingly instructed the Secretary to develop mechanisms for making appropriate retroactive adjustments when reimbursement is found to be inadequate or excessive. § 1395x(v)(l)(A)(ii). Pursuant to this statutory mandate, the Secretary requires providers to submit annual cost reports which are then audited to determine actual costs. 42 CFR §§405.454, 405.1803 (1982). The Secretary may reopen any reimbursement determination within a 3-year period and make appropriate adjustments. §405.1885. The Act also permits a provider to elect to receive reimbursement through a “fiscal intermediary.” 42 U. S. C. §1395h; 42 CFR §421.103 (1982). If the intermediary the provider has nominated meets the Secretary’s requirements, the Secretary then enters into an agreement with the intermediary to have it perform those administrative responsibilities she assigns it. §§421.5, 421.110. These duties include receipt, disbursement, and accounting for funds used in making Medicare payments, auditing the records of providers in order to ensure payments have been proper, resolving disputes over cost reimbursement, reviewing and reconsidering payments to providers, and recovering over-payments to providers. §§421.100(b), (c), (e), (f), 421.120(e). The fiscal intermediary must also “serve as a center for, and communicate to providers, any information or instructions furnished to it by the Secretary, and serve as a channel of communication from providers to the Secretary.” 42 U. S. C. § 1395h(a)(2)(A). Respondent Community Health Services of Crawford County, Inc. (hereafter respondent), is a nonprofit corporation. In 1966 it entered into a contract with petitioner’s predecessor, the Secretary of Health, Education, and Welfare, to provide home health care services to individuals eligible for benefits under Part A of the Medicare program, 42 U. S. C. §§ 1395c to 1395Í-2. Under the contract, respondent received reimbursement through a fiscal intermediary, the Travelers Insurance Cos. (Travelers). In 1973 Congress enacted the Comprehensive Employment and Training Act (CETA), 87 Stat. 839, codified, as amended, at 29 U. S. C. § 801 et seq. (1976 ed. and Supp. V), and repealed, Pub. L. 97-300, 96 Stat. 1357, authorizing the use of federal funds to provide training and job opportunities for economically disadvantaged persons. In 1975 respondent began participating in the program, which reimbursed it for the salaries and fringe benefits paid to certain of its employees. CETA funds made it possible for respondent to take on additional personnel and to provide additional home health care services. To prevent what would be in effect double reimbursement of providers’ costs, one of the regulations concerning reasonable costs reimbursable under the Medicare program indicates that grants received by a provider in order to pay specific operating costs must be subtracted from the reasonable costs for which the provider may receive reimbursement. After obtaining a CETA grant, respondent’s administrator contacted Travelers to ask whether the salaries of its CETA-funded employees who provided services to patients eligible for Medicare benefits were reimbursable as reasonable costs under Medicare. Travelers’ Medicare manager orally advised respondent that the CETA funds were “seed money” within the meaning of § 612.2 of the Provider Reimbursement Manual, which is defined as “[g]rants designated for the development of new health care agencies or for expansion of services of established agencies,” and therefore, even though the CETA employees’ salaries constituted specific operating costs paid by a federal grant, they were reimbursable under the Medicare program. Relying on Travelers’ advice, respondent included costs for which it was receiving CETA reimbursement in its cost reports, and received reimbursement for those sums amounting to $7,694, $32,460, and $31,326 in fiscal 1975, 1976, and 1977, respectively. On several occasions during this period, respondent requested and received from Travelers oral verification of the propriety of this treatment. With these additional funds, respondent expanded its annual number of home health care visits from approximately 4,000 in 1974 to over 81,000 in the next three years. Its annual budget increased during that period from about $200,000 to about $900,000. It is undisputed that correct administrative practice required Travelers to refer respondent’s inquiry to the Department of Health and Human Services for a definitive answer. However, Travelers did not do this until August 7, 1977, when a written request for instructions was finally submitted to the Philadelphia office of the Department’s Bureau of Health Insurance. Travelers was then formally advised that the CETA funds were not “seed money” and therefore had to be subtracted from respondent’s Medicare reimbursement. On October 7,1977, Travelers formally notified respondent of this determination. Travelers then reopened respondent’s cost reports for the preceding three years and recomputed respondent’s reimbursable costs, determining that respondent had been overpaid a total of $71,480. In May 1978 Travelers made a formal demand for repayment of the disputed amount. Respondent filed suit and obtained temporary injunctive relief against the Secretary and Travelers; in November 1979, the parties entered into a stipulation providing that the Secretary would postpone any attempts at recoupment and that the civil action would be stayed pending the outcome of administrative review. Thereafter, the Secretary’s Provider Reimbursement Review Board (PRRB) conducted a hearing and issued a written opinion rejecting the position that CETA funds were “seed money.” The PRRB found, however, that the Secretary’s right to recoup the 1975 overpayment was barred because Travelers had not given respondent a written notice of reopening within the 3-year limitations period; thus, the amount in dispute was reduced to approximately $63,800. On April 10,1980, respondent filed a complaint in the District Court seeking review of the administrative determination. The District Court consolidated that case with the equitable action that had been filed about two years earlier. On cross-motions for summary judgment, the District Court ruled in favor of the Secretary, accepting the PRRB’s view of the Secretary’s regulations and rejecting respondent’s claim that the Secretary ought to be estopped to deny that the CETA grants were “seed money” because of the representations of her agent, Travelers. The District Court held that it was unreasonable for respondent to believe it could be in effect twice reimbursed for a given expense. The Court of Appeals reversed, reaching only the estoppel question. Community Health Services of Crawford County, Inc. v. Califano, 698 F. 2d 615 (CA3 1983). It held that the Government may be estopped by the “affirmative misconduct” of its agents and that Travelers’ erroneous advice coupled with its failure to refer the question to the Secretary constituted such misconduct. It rejected as “clearly erroneous” the District Court’s finding that it was unreasonable for respondent to rely on Travelers’ advice, concluding instead that respondent acted reasonably because the relevant regulation had no clear meaning and respondent had no source other, than Travelers to which it could turn for advice. HH Estoppel is an equitable doctrine invoked to avoid injustice in particular cases. While a hallmark of the doctrine is its flexible application, certain principles are tolerably clear: “If one person makes a definite misrepresentation of fact to another person having reason to believe that the other will rely upon it and the other in reasonable reliance upon it does an act . . . the first person is not entitled “(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired.” Restatement (Second) of Torts §894(1) (1979). Thus, the party claiming the estoppel must have relied on its adversary’s conduct “in such a manner as to change his position for the worse,” and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading. See Wilber National Bank v. United States, 294 U. S. 120, 124-125 (1935). HH When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant. Petitioner urges us to expand this principle into a flat rule that estoppel may not in any circumstances run against the Government. We have left the issue open in the past, and do so again today. Though the arguments the Government advances for the rule are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government. But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present. We are unpersuaded that that has been done in this case with respect to either respondent’s change in position or its reliance on Travelers’ advice. Ill To analyze the nature of a private party’s detrimental change in position, we must identify the manner in which reliance on the Government’s misconduct has caused the private citizen to change his position for the worse. In this case the consequences of the Government’s misconduct were not entirely adverse. Respondent did receive an immediate benefit as a result of the double reimbursement. Its detriment is the inability to retain money that it should never have received in the first place. Thus, this is not a case in which the respondent has lost any legal right, either vested or contingent, or suffered any adverse change in its status. When a private party is deprived of something to which it was entitled of right, it has surely suffered a detrimental change in its position. Here respondent lost no rights but merely was induced to do something which could be corrected at a later time. There is no doubt that respondent will be adversely affected by the Government’s recoupment of the funds that it has already spent. It will surely have to curtail its operations and may even be forced to seek relief from its debts through bankruptcy. However, there is no finding as to the extent of the likely curtailment in the volume of services provided by respondent, much less that respondent will reduce its activities below the level that obtained when it was first advised that the double reimbursement was proper. Respondent may need an extended period of repayment or other modifications in the recoupment process if it is to continue to operate, but questions concerning the Government’s method of enforcing collection are not before us. The question is whether the Government has entirely forfeited its right to the money. A for-profit corporation could hardly base an estoppel on the fact that the Government wrongfully allowed it the interest-free use of taxpayers’ money for a period of two or three years, enabling it to expand its operation. No more can respondent claim any right to expand its services to levels greater than those it would have provided had the error never occurred. Curtailment of operation does not justify an estoppel when — by respondent’s own account — the expansion of its operation was achieved through unlawful access to governmental funds. And even if there will be a reduction below the service provided by respondent prior to its receipt of CETA funds, the record does not foreclose the possibility that the aggregate advantages to the community stemming from respondent’s use of the money have more than offset the actual hardship associated with now being required to restore these funds. Respondent cannot raise an estoppel without proving that it will be significantly worse off than if it had never obtained the CETA funds in question. > H-i Justice Holmes wrote: Men must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). This observation has its greatest force when a private party seeks to spend the Government’s money. Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law; respondent could expect no less than to be held to the most demanding standards in its quest for public funds. This is consistent with the general rule that those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law. As a participant in the Medicare program, respondent had a duty to familiarize itself with the legal requirements for cost reimbursement. Since it also had elected to receive reimbursement through Travelers, it also was acquainted with the nature of and limitations on the role of a fiscal intermediary. When the question arose concerning respondent’s CETA funds, respondent’s own action in consulting Travelers demonstrates the necessity for it to have obtained an interpretation of the applicable regulations; respondent indisputably knew that this was a doubtful question not clearly covered by existing policy statements. The fact that Travelers’ advice was erroneous is, in itself, insufficient to raise an estoppel, as is the fact that the Secretary had not anticipated this problem and made a clear resolution available to respondent. There is simply no requirement that the Government anticipate every problem that may arise in the administration of a complex program such as Medicare; neither can it be expected to ensure that every bit of informal advice given by its agents in the course of such a program will be sufficiently reliable to justify expenditure of sums of money as substantial as those spent by respondent. Nor was the advice given under circumstances that should have induced respondent’s reliance. As a recipient of public funds well acquainted with the role of a fiscal intermediary, respondent knew Travelers only acted as a conduit; it could not resolve policy questions. The relevant statute, regulations, and Reimbursement Manual, with which respondent should have been and was acquainted, made that perfectly clear. Yet respondent made no attempt to have the question resolved by the Secretary; it was satisfied with the policy judgment of a mere conduit. The appropriateness of respondent’s reliance is further undermined because the advice it received from Travelers was oral. It is not merely the possibility of fraud that undermines our confidence in the reliability of official action that is not confirmed or evidenced by a written instrument. Written advice, like a written judicial opinion, requires its author to reflect about the nature of the advice that is given to the citizen, and subjects that advice to the possibility of review, criticism, and reexamination. The necessity for ensuring that governmental agents stay within the lawful scope of their authority, and that those who seek public funds act with scrupulous exactitude, argues strongly for the conclusion that an estoppel cannot be erected on the basis of the oral advice that underlay respondent’s cost reports. That is especially true when a complex program such as Medicare is involved, in which the need for written records is manifest. In sum, the regulations governing the cost reimbursement provisions of Medicare should and did put respondent on ample notice of the care with which its cost reports must be prepared, and the care which would be taken to review them within the relevant 3-year period. Yet respondent prepared those reports on the basis of an oral policy judgment by an official who, it should have known, was not in the business of making policy. That is not the kind of reasonable reliance that would even give rise to an estoppel against a private party. It therefore cannot estop the Government. Thus, assuming estoppel can ever be appropriately applied against the Government, it cannot be said that the detriment respondent faces is so severe or has been imposed in such an unfair way that petitioner ought to be estopped from enforcing the law in this case. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Congress also authorized petitioner to adjust interim payments on account of previous overpayments or underpayments. § 1395g(a). “(a) Principle. Unrestricted grants, gifts, and income from endowments should not be deducted from operating costs in computing reimbursable cost. Grants, gifts, or endowment income designated by a donor for paying specific operating costs should be deducted from the particular operating cost or group of costs. “(b) Definitions — (1) Unrestricted grants, gifts, income from. endowment. Unrestricted grants, gifts, and income from endowments are funds, cash or otherwise, given to a provider without restriction by the donor as to their use. “(2) Designated or restricted grants, gifts, and income from endowments. Designated or restricted grants, gifts, and income from endowments are funds, cash or otherwise, which must be used only for the specific purpose designated by the donor. This does not refer to unrestricted grants, gifts, or income from endowments which have been restricted for a specific purpose by the provider. “(c) Application. (1) Unrestricted funds, cash or otherwise, are generally the property of the provider to be used in any manner its management deems appropriate and should not be deducted from operating costs. It would be inequitable to require providers to use the unrestricted funds to reduce the payments for care. The use of these funds is generally a means of recovering costs which are not otherwise recoverable. “(2) Donor-restricted funds which are designated for paying certain hospital operating expenses should apply and serve to reduce these costs or group of costs and benefit all patients who use services covered by the donation. If such costs are not reduced, the provider would secure reimbursement for the same expense twice; it would be reimbursed through the donor-restricted contributions as well as from patients and third-party payers including the title XVIII health insurance program.” 42 CFR § 405.423 (1982) (emphasis supplied). “Seed Money Grants. — Grants designated for the development of new health care agencies or for expansion of services of established agencies are generally referred to as ‘seed money’ grants. ‘Seed money’ grants are not deducted from costs in computing allowable costs. These grants are usually made to cover specific operating costs or group[s] of costs for services for a stated period of time. During this time, the provider will develop sufficient patient caseloads to enable continued self-sustaining operation with funds received from Medicare reimbursement as well as from funds received from other patients or other third-party payers.” Medicare Provider Reimbursement Manual, HIM-15, Pt. I, §612.2 (Aug. 1968), reproduced in 1 CCH, Medicare & Medicaid Guide ¶ 5461 (1983). Presumably because CETA program participants provided services to some individuals not eligible for Medicare benefits, the aggregate amount of CETA reimbursements was substantially larger than the portion for which Medicare reimbursement was claimed. The total amount of reimbursement respondent received in CETA funds was $16,555, $53,952, and $81,118 in 1975, 1976, and 1977, respectively. From its review of the record the Court of Appeals concluded that respondent had consulted Travelers and was advised that the CETA grants qualified as “seed money” on five separate occasions. However, the District Court made no finding as to the number of times that this advice was requested and received. The Board also found that the required written notice for 1976 had not been served on respondent, but noted that the Secretary still had time to comply with the notice requirement for that year. A timely notice for 1976 was thereafter served on respondent. The District Court also held that Travelers was not independently liable to respondent for its incorrect advice. See also Restatement (Second) of Agency §8B (1958). 3 J. Pomeroy, Equity Jurisprudence § 805, p. 192 (S. Symons ed. 1941); see also id., §812. “The truth concerning these material facts must be unknown to the other party claiming the benefit of the estoppel, not only at the time of the conduct which amounts to a representation or concealment, but also at the time when that conduct is acted upon by him. If, at the time when he acted, such party had knowledge of the truth, or had the means by which with reasonable diligence he could acquire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representation or concealment.” Id., §810, at 219 (footnote omitted). See, e. g., INS v. Hibi, 414 U. S. 5, 8 (1973) (per curiam); Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380, 383 (1947). See INS v. Miranda, 459 U. S. 14, 19 (1982) (per curiam); Schweiker v. Hansen, 450 U. S. 785, 788 (1981) (per curiam); Montana v. Kennedy, 366 U. S. 308, 315 (1961). In fact, at least two of our cases seem to rest on the premise that when the Government acts in misleading ways, it may not enforce the law if to do so would harm a private party as a result of governmental deception. See United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655, 670-675 (1973) (criminal defendant may assert as a defense that the Government led him to believe that its conduct was legal); Moser v. United States, 341 U. S. 41 (1951) (applicant cannot be deemed to waive right to citizenship on the basis of a form he signed when he was misled as to the effect signing would have on his rights). See also Kaiser Aetna v. United States, 444 U. S. 164, 178-180 (1979); Santobello v. New York, 404 U. S. 257 (1971); Branson v. Wirth, 17 Wall. 32, 42 (1873). This principle also underlies the doctrine that an administrative agency may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974); Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 807-808 (1973) (plurality opinion); SEC v. Chenery Corp., 332 U. S. 194, 203 (1947). See generally St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting) (“Our Government should not by picayunish haggling over the scope of its promise, permit one of its arms to do that which, by any fair construction, the Government has given its word that no arm will do. It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their government”); Federal Crop Insurance Corp. v. Merrill, 332 U. S., at 387-388 (Jackson, J., dissenting) (“It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street”); Brandt v. Hickel, 427 F. 2d 53, 57 (CA9 1970) (“To say to these appellants, ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government”); Menges v. Dentler, 33 Pa. 495, 500 (1859) (“Men naturally trust in their government, and ought to do so, and they ought not to suffer for it”). See also Giglio v. United States, 405 U. S. 150, 154-155 (1972). This case is, therefore, plainly distinguishable from Moser v. United States, 341 U. S. 41 (1951), in which the petitioner “was led to believe that he would not thereby lose his rights to citizenship.” Id., at 46. See Schweiker v. Hansen, 450 U. S., at 789 (per curiam). See United States v. Stewart, 311 U. S. 60, 70 (1940); Sutton v. United States, 256 U. S. 575 (1921); Pine River Logging Co. v. United States, 186 U. S. 279, 291 (1902); Hart v. United States, 95 U. S. 316 (1877). See also Automobile Club v. Commissioner, 353 U. S. 180 (1957). Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.” Federal Crop Insurance Corp. v. Merrill, 332 U. S., at 384. See United States v. California, 332 U. S. 19, 39-40 (1947); United States v. Stewart, 311 U. S., at 70; United States v. San Francisco, 310 U. S. 16, 31-32 (1940); Wilber National Bank v. United States, 294 U. S. 120, 123-124 (1935); Utah v. United States, 284 U. S. 534, 545-546 (1932); Jeems Bayou Fishing & Hunting Club v. United States, 260 U. S. 561, 564 (1923); Sutton v. United States, 256 U. S., at 579; Utah Power & Light Co. v. United States, 243 U. S. 389, 409 (1917); Pine River Logging Co. v. United States, 186 U. S., at 291; Hart v. United States, 95 U. S., at 318-319; Gibbons v. United States, 8 Wall. 269, 274 (1869); Lee v. Munroe, 7 Cranch 366 (1813). See Schweiker v. Hansen, 450 U. S., at 789-790 (per curiam); Montana v. Kennedy, 366 U. S. 308, 314-315 (1961). See INS v. Miranda, 459 U. S. 14 (1982) (per curiam); INS v. Hibi, 414 U. S. 5 (1973) (per curiam). See generally Schweiker v. Hansen, supra. Under the law of agency, a principal may be bound by the acts of an agent only if that agent acted with actual or apparent authority. Restatement (Second) of Agency §§ 145, 159 (1958). Travelers had neither with respect to the interpretation of the regulations in question. See also id., § 141, Comment b (principal may be estopped to deny lack of actual or apparent authority only when it negligently leads third parties to believe authority exists). The Court of Appeals believed that respondent did all it could have done since it was unable to deal with the Secretary directly. However, that belief, even if accurate, would not make respondent’s reliance on Travelers’ policy judgment any more reasonable. Moreover, given the role of Travelers as a conduit for information, it is far from clear that had respondent specifically requested that Travelers pass on its question to the Department, Travelers would not have been under a duty to do so. Even if there were no such duty, there is nothing in the record to indicate that Travelers would have been unwilling to honor such a request. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Milton MENDE, Appellant, v. UNITED STATES of America, Appellee. No. 17363. United States Court of Appeals Ninth Circuit. June 16, 1961. Thomas T. Johnson, Los Angeles, Cal., for appellant. Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Div., David Y. Smith, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges. PER CURIAM. On September 26,1960, we affirmed the judgment of Mende’s conviction. Mende v. United States, 9 Cir., 282 F.2d 881. With prison facing him, Mende has obtained new counsel who has made below a collateral attack on the judgment, claiming the indictment was so fatally defective that the trial court did not have jurisdiction to try him. The trial court rejected it. The government makes a number of suggestions as to why Mende had no standing below or here to now be heard. But in our opinions its objections do not go to the naked right of a court to hear the collateral attack. Therefore, we consider the attack on its merits. Under critical examination, the indictment could be improved. But the whole point defendant-appellant makes, could have been taken care of by proffering a precautionary instruction. Such was not done. We hold the indictment was not so fatally defective as to deprive the court of jurisdiction. The order appealed from is affirmed. 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_r_state	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SOUTH SUBURBAN SAFEWAY LINES, INC., Plaintiff-Appellant, v. The CITY OF CHICAGO, Chicago Transit Authority, et al., Defendants-Appellees. No. 17179. United States Court of Appeals Seventh Circuit. Oct. 6, 1969. Harold M. Olsen, Olsen, Cantrill & Miller, Springfield, Ill., Brimson Grow, Dale, Haffner, Grow & Overgaard, Chicago, Ill., for plaintiff-appellant. Robert E. Wiss, Raymond F. Simon, Corp. Counsel, Thomas A. Foran, U. S. Atty., Chicago, Ill., Morton Hollander, Chief, Appellate Section, Carl Eardley, Acting Asst. Atty. Gen., Alan S. Rosenthal, Michael C. Farrar, Attys., Dept. of Justice, Washington, D. C., for federal defendants-appellees. George J. Schaller, O. R. Hamlink, Norman J. Barry, Chicago, Ill., for defendant-appellee, Chicago Transit Authority. Before FAIRCHILD and KERNER, Circuit Judges, and HOLDER, District Judge. . District Judge Holder of the Southern District of Indiana is sitting by designation. FAIRCHILD, Circuit Judge. South Suburban Safeway Lines, Inc. brought action challenging a grant of federal funds to the city of Chicago or its transit authority pursuant to the Urban Mass Transportation Act of 1964 (UMTA). The defendants are federal officers involved in granting the funds as well as the city and the Chicago Transit Authority. The district court decided that South Suburban lacked standing and dismissed the action. South Suburban appealed. South Suburban operates a bus transportation system as an Illinois public utility. Its routes extend south from the central business district of Chicago. For a considerable distance they run along or parallel to the Dan Ryan Expressway. Chicago Transit Authority is a body politic, created by an Illinois statute for the purpose of establishing a transportation system in Cook county, Illinois. The city and authority propose an extension of the authority’s rail operations down the median strip of the Dan Ryan Expressway. South Suburban alleges that this service will compete with and destroy South Suburban’s service. The federal defendants approved a grant to the authority for the purpose of making the extension. South Suburban alleged that UMTA is itself unconstitutional, and claims in any event, in substance, that the federal defendants failed to make findings required by UMTA or that such findings, if made, lacked sufficient support. As will appear, we think that South Suburban clearly lacks standing to challenge the validity of UMTA. The closer question is whether it has standing to challenge the sufficiency of the federal defendants’ compliance with the act, even though UMTA has no express provision for judicial review. 1. Taxpayer’s lack of standing to challenge validity of federal expenditure. South Suburban is undoubtedly a federal taxpayer. It is settled law that a taxpayer’s interest in federal funds is insufficient, as a general rule, for standing to challenge the validity of a federal law providing for expenditure or the validity of a particular expenditure. In Flast v. Cohen the Supreme Court found that the threat of federal expenditure in violation of the establishment clause of the first amendment gave a federal taxpayer standing to seek a judicial determination whether there was such violation. In our view, Flast indicates no change in the law of standing which would accord standing to South Suburban as a taxpayer to challenge UMTA or a particular expenditure under it. 2. South Suburban’s lack of state law right to be free from competition. Where a utility does not have a state law right to be free from competition, the threat of financial loss as a result of competition does not give standing to challenge validity of a federal loan or grant which will make the competition feasible. The district court analyzed the status under Illinois law of the certificates of public convenience and necessity granted to South Suburban and the statutory authority granted to Chicago Transit Authority. It concluded that South Suburban has no legal right to be free of competition from the authority. We agree. 3. The effect of the Administrative Procedure Act. 5 U.S.C. § 702 provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” As already pointed out, South Suburban does not have such rights under state law that a federal loan or grant assisting its competitor constitutes a “legal wrong”. UMTA does not expressly confer a right to judicial review. Whether it carries an implication that South Suburban is a person aggrieved will be separately considered. Although one can read § 702 as conferring standing on anyone who is “adversely affected * * * by agency action”, the prevailing judicial interpretation has been that § 702 does not create standing which would not exist apart from § 702 by virtue of general principles or other statutes. Professor Davis cites senate and house committee reports to support his opposing view “that any person adversely affected in fact by agency action has the right of review.” This circuit has, however, followed the prevailing view. 4. The basis of challenge- to agency action in this case. South Suburban is a private “mass transportation company” under UMTA. The purposes of the act are to assist in the development of improved mass transportation facilities and to encourage planning of urban mass transportation systems, with the cooperation of mass transportation companies both public and private, and to provide assistance to state and local governments and instrumentalities in financing such systems, “to be operated by public or private mass transportation companies as determined by local needs.” The act authorized the Secretary of Housing and Urban Development (the functions now having been transferred to the Secretary of Transportation) to make grants or loans to assist state and local public agencies in financing the acquisition and construction of mass transportation facilities. § 1602(c) is headed “Private transit operators” and provides in part: “No financial assistance shall be provided * * * to any State or local public body or agency thereof for the purpose, directly or indirectly, of acquiring any interest in, or purchasing any facilities or other property of, a private mass transportation company, or for the purpose of constructing, improving, or reconstructing any facilities or other property acquired (after July 9, 1964) from any such company, or for the purpose of providing by contract or otherwise for the operation of mass transportation facilities or equipment in competition with, or supplementary to, the service provided by an existing mass transportation company, unless (1) the Secretary finds that such assistance is essential to a program, proposed or under active preparation, for a unified or officially coordinated urban transportation system as part of the comprehensively planned development of the urban area, (2) the Secretary finds that such program, to the maximum extent feasible, provides for the participation of private mass transportation companies, (3) just and adequate compensation will be paid to such companies for acquisition of their franchises or property to the extent required by applicable State or local laws, and (4) the Secretary of Labor certifies that such assistance complies with the requirements of section 1609(c) of this title.” South Suburban has adequately alleged that a grant has been made for the purpose of providing for operation of facilities in competition with it. The federal defendants appear to concede that the proposed facilities will be supplementary to South Suburban’s service, though they do not concede there will be competition. In either event, it would necessarily follow that such grant was forbidden unless the four standards have been fulfilled. South Suburban has alleged that “there has been no showing” of the facts required by (1), (2), and (3). Presumably this is the equivalent of a charge that the secretary failed to make findings (1) and (2) or that the findings, if made, are not adequately supported, and that (3) is not fulfilled. 5. Does § 1602(c) imply that South Suburban has standing to seek judicial review? In Hardin v. Kentucky Utilities Co. a private utility alleged that T.Y.A. was violating a specific statutory prohibition by expansion of its service into an area which plaintiff served. There was no express provision for judicial review. But the Court found, from the nature and history of the prohibition, that one of its primary purposes was to protect private utilities from T.V.A. competition. After noting the usual rule that injury by competition does not confer standing, the Court said that “when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision.” The text of § 1602 does indeed show a concern that private ownership of existing mass transportation systems should not be unnecessarily or unfairly disturbed. But we do not find the clarity of purpose to prohibit competition with private utilities which was manifest in the statute in Hardin. In § 1602, Congress seems to have been primarily concerned over the possibility of public acquisition of private facilities (a subject not involved in this action) although competition with and supplementation of existing facilities were also dealt with. § 1602 begins with a prohibition against granting federal assistance for any of those purposes, but then relieves from such prohibition if four standards are met. Each standard except (3), which is irrelevant here, calls for an administrative decision which is essentially an exercise of discretion. (1) requires a decision that the assistance is “essential to a program, proposed or under active preparation, for a unified or officially coordinated urban transportation system as part of the comprehensively planned development of the urban area.” (2) requires a decision that “such program, to the maximum extent feasible, provides for the participation of private mass transportation companies.” (3), although demonstrated to be inapplicable to South Suburban as a matter of law, requires that state law rights to adequate compensation for franchises or property be fulfilled. (4) requires a decision by the Secretary of Labor that fair and equitable arrangements are made to protect the interests of affected employees. In the instant case the questions (1) whether the statute implies that a private utility claiming it will suffer competitive injury has standing, (2) whether the administrative decision is left so largely to discretion as to be reviewable at all, and (3) as to the scope of judicial review, tend to merge into one. The more the fulfillment of the standards is left to administrative discretion, the less the basis for implication of standing. It is our best judgment that Congress was satisfied that its statutory command to the secretaries was sufficient for its purpose, without resort to judicial review. Assuming, however, that South Suburban has standing, we would come to the affidavit filed by the federal defendants in support of their motion for summary judgment. The affiant was the Deputy Assistant Secretary for Metropolitan Development in the Department of Housing and Urban Development (which originally had jurisdiction in the matter). He asserted that officers of the department had reviewed the city’s application for assistance and had made on site inspections and evaluations of the project. He named documents relating to planning for the Chicago urban area and its transportation system which were reviewed and considered. He listed a number of instances of participation of private transportation companies in an officially coordinated mass transportation system, and described one area of intended coordination of South Suburban’s service with the proposed project. He set forth the findings made on the basis of the studies described, and they fulfilled standards (1), (2), and (4) in § 1602(c). With respect to (3) it was found that no franchise or property of a private mass transportation company would be acquired. Affiant stated that he had approved the grant in the exercise of powers formally delegated to him by the secretary. As already suggested, the questions of standing, reviewability, and scope of review tend to merge. We conclude that even if South Suburban be accorded standing to challenge administrative compliance with § 1602(c), the review is so limited that South Suburban can not succeed. No hearing was required by any statute. There is no record to examine. The elements of the findings to be made are discretionary, essentially more quasi legislative than quasi judicial. Surely Congress intended no trial de novo. The procedure which was followed shows that the administrative agency did address itself to the questions posed by § 1602(c), in a rational manner, and resolve them by findings which met the statutes. The showing made, we think, would support the agency decision in terms of the scope of review to which South Suburban might, at the utmost, be entitled. The judgment is affirmed. . 49 U.S.C. §§ 1601-1611. . South Suburban Safeway Lines, Inc. v. City of Chicago (N.D.Ill., 1968), 285 F.Supp. 676. . Frothingham v. Mellon (1923), 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078, 1085. . (1968), 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. . Alabama Power Co. v. Ickes (1938), 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Tennessee Electric Power Co. v. T. V. A. (1939), 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543; Duke Power Co. v. Greenwood (1938), 302 U.S. 485, 58 S.Ct. 306, 82 L.Ed. 381. Cf. Public Service Company of Indiana v. Hamil, 416 F.2d 648 (7th Cir., 17547, Sept. 18, 1969). . 285 F.Supp. pp. 679-680. . Kansas City Power & Light Co. v. McKay (1955), 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780; Duba v. Schuetzle (8th Cir., 1962), 303 F.2d 570; Harrison-Halsted Com. Group, Inc. v. Housing & Home Finance A. (7th Cir. 1962), 310 F.2d 99; Pennsylvania R.R. v. Dillon (1964), 118 U.S.App.D.C. 257, 335 F.2d 292, cert. denied, American-Hawaiian S.S. Co., 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543; Braude v. Wirtz (9th Cir., 1965), 350 F.2d 702; Rural Electrification Admin, v. Northern States Power Co. (8th Cir., 1967), 373 F.2d 686. See Jaffe, The Right to Judicial Review II, 71 Harv.L.Rev. 769 at 790: “The Administrative Procedure Act has had negligible effect on the basic right to judicial review.” . K. Davis, Standing — Taxpayers and Others, 35 U.Chi.L.Rev. 601, 619 (1968). . Harrison-Halsted Com. Group v. Housing & Home Finance A. (7th Cir., 1962), 310 F.2d 99, 104, cert. denied, 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414; Green Street Association v. Daley (7th Cir., 1967), 373 F.2d 1, 7, cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995. . We have italicized the portion of the subsection which prohibits the use of funds to provide competition with an existing company, as claimed here. The four standards which must be fulfilled in order to render either the prohibition against assistance for acquisition or the prohibition against assistance to create competition follow the italicized portion. . South Suburban also relies upon alleged nonfulfillment of standards set forth in § 1603. The latter are less definite than those in § 1602, leave even greater latitude to the secretary, and need not, for that reason, be separately considered. . (1968), 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787. . 390 U.S. at 6, 88 S.Ct. at 654. . (4) has not been an issue in this case. In Kendler v. Wirtz (3rd Cir., 1968), 388 F.2d 381, employees and their union challenged a decision of the Secretary of Labor that (4) bad been fulfilled. The third circuit did not decide whether plaintiffs had standing, but held. that the breadth of administrative discretion under (4) closely limited the scope of judicial review, virtually to whether or not the secretary had in fact made a judgment in the matter. Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_constit	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. 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: 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:
songer_civproc1	8	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. Vincent B. WELCH, Appellant, v. Robert W. SHERWIN et al., Appellees. No. 16312. United States Court of Appeals District of Columbia Circuit. Argued Oct. 10, 1961. Decided Feb. 8, 1962. Mr. John A. Kendrick, Washington, D. C. , with whom Mr. E. Tillman Stirling, Washington, D. C., was on the brief, for .appellant. Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Fried-lander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief, for appellees. Before Edgerton, Bazelon and Fahy, Circuit Judges. BAZELON, Circuit Judge. This is a suit for an attorney’s fee of $12,718.41 based upon a written contract under which defendants, members of the Creditors’ Committee of an insolvent corporation, “assume[d] responsibility for payment of plaintiff’s fees * * * regardless of any arrangement the Creditors’ Committee may have or may obtain for reimbursement.” After trial, without .jury, the District Court found that a discussion between the parties which preceded execution of the contract led the defendants to understand “that in signing the agreement they would be technically liable for attorney’s fees and costs, but that * * * if the [debtor] corporation assumed [such] liability * * * the individual creditors would not be held responsible.” Finding that the corporation had assumed but had not paid the debt, the court denied recovery under the contract. Plaintiff appeals. We think the District Court erred. There is no allegation or finding of fraud, mistake or overreaching. And the contemporaneous oral “understanding” upon which the trial court relied contradicts the plain language of the contract. “[W]here parties enter into a written contract, their rights must be controlled thereby, and, in the absence of fraud or mistake, all evidence of any contemporaneous oral agreement on the same subject matter, contradicting, varying, modifying, or adding to the terms of the written agreement is inadmissible. Shankland v. Mayor, etc., 5 Pet. 390, 30 U.S. 390, 8 L.Ed. 166, affirming Shankland v. Corporation of Washington, Fed.Cas.No. 12,703, 3 Cranch C.C. 328; Selden v. Myers, 20 How. 506, 61 U.S. 506, 15 L.Ed. 976; Willard v. Tayloe, 8 Wall. 557, 75 U. S. 557, 19 L.Ed. 501. The written contract merges all previous negotiations and is presumed, in law, to express the final understanding of the parties. Brawley v. United States, 96 U.S. 168, 24 L.Ed. 622; Van Ness v. Mayor, etc., of City of Washington, 4 Pet. 232, 29 U.S. 232, 7 L.Ed. 842, affirming Van Ness v. United States, Fed.Cas.No. 16,868, 2 Cranch C.C. 376, 2 D.C. 376; Kinney v. Mc-Nabb, 44 App.D.C. 340” [Boomhower, Inc. v. Louis L. Lavine, 151 F.Supp. 563, 567 (D.D.C.1957).] It follows that the instant contract must be enforced as written. The question remaining is whether the defendants are jointly liable for the entire fee or severally liable for only a “pro rata” share. We are constrained to hold that they are jointly liable for the entire fee. The contract provides that “the members of the Committee as such assume[d] responsibility for payment,” and contains no words of severance. The general rule is “that the obligation created by the promise of several persons is joint unless the contrary is made evident.” 2 Willis-ton, Contracts § 323 (1936). Cf. Restatement, Contracts § 112 (1932). Moreover, the contract identifies the promisors as “the members of the Committee” and discloses an undivided promise to pay the entire fee. This negates the view that each member made a separate promise to pay a pro rata share. See 4 Corbin, Contracts § 925 (1951). Compare Huff v. Doerr, 206 Mo.App. 563, 228 S.W. 849 (1921), with O’Connor v. Hooper, 102 Cal. 528, 36 P. 939 (1894). Cf. Olson v. Forster, 42 Cal.App.2d 493, 109 P.2d 388 (1941). Compare Adriatic Fire Ins. Co. v. Treadwell, 108 U.S. 361, 2 S.Ct. 772, 27 L.Ed. 754 (1883). Finally, the common object of the members of the Creditors’ Committee — to secure appellant’s legal services — suggests that their liability is joint. 4 Corbin, Contracts § 926 (1951). Whether the members of the Creditors’ Committee are entitled to contribution inter se or from other creditors, or both, *s no^ before us. Reversed and remanded. . The court below awarded plaintiff $505.-83, presumably as third party beneficiary of another contract in which defendants as creditors promised to pay a portion of the Committee’s expenses based upon their share of the corporation’s debts. . Fraud is an affirmative defense which must be pleaded. Fed.R.Civ.P. rule 8(c), 28 U.S.C.A. Counsel admitted that defendants are experienced businessmen, well aware of the importance of written agreements. Compare Hill v. Marston, 65 App.D.C. 250, 82 F.2d 856 (1936). . The terms joint, several, and joint and several have occasionally been confused. Co-promisors are liable (1) jointly if all of them have promised the entire performance; or (2) severally if they have promised separate performances. At common law joint promisors had to be joined in a single suit, but any one of them could be compelled to satisfy the entire judgment. 4 Corbin, Contracts §§ 920, 929 (1951). To obviate the necessity for joining all the promisors, and to avoid problems of survivorship, release of co-obligors, and the like, the promisee obtained the promisors’ agreement to be liable jointly and severally; i. e., collectively and individually liable for the whole performance. In this jurisdiction, statutes authorize separate suits against joint promisors even if they have not agreed to be liable jointly and severally. D.C.Code §§ 13-401, 16-901 (1961). Those statutes do not determine, of course, whether each co-promisor has agreed to be liable for the entire performance or only for a part thereof. That determination is governed by the terms of the contract. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_respond2_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. GLENS FALLS INDEMNITY CO. v. ATLANTIC BLDG. CORP. et al. No. 6424. United States Court of Appeals Fourth Circuit. Argued June 30, 1952. Decided Sept. 25, 1952. Frank B. Gary, Jr., Columbia, S. C. (Paul A. Cooper, Frank K. Sloan and Cooper & Gary, Columbia, S. C., on brief), for appellant. Yancey A. McLeod and C. T. Gray don, Columbia, S. C. (Augustus T. Graydon and McLeod & Singletary, Columbia, S. C., on brief), for appellees. Before SOPER and DOBIE, Circuit Judges, and HÁYES, District Judge. SOPER, Circuit Judge. This suit on a comprehensive liability insurance policy was brought by Atlantic Building Corporation, the insured, against Glens Falls Indemnity Company to recover the sum of $2,700 paid by the insured in settlement of a suit for damages for assault and battery brought by Margaret Steel Fallaw against the insured and Tom E. Mat-lack in the Court of Common Pleas for Richland County, South Carolina, and also to recover the sum of $750 for attorney’s fees expended in defense of the suit. The District Court rendered judgment against the Insurance Company for the amounts claimed. The insured called on the Insurance Company in due course to defend the suit in the state court; but the company refused on the ground that the suit was not covered by the policy because Matlack was president of the insured and it was alleged in the complaint that Matlack, while acting within the course and scope of his employment by the insured, assaulted the plaintiff and struck her in the face with his fist as she was attempting to park her car on the street in Columbia, South Carolina. The Insurance Company took the position that although the policy provided that the company would pay, on behalf of the insured, all sums which the insured should become obligated to pay by reason of liability imposed by law for damages for bodily injury caused by accident, the policy also provided in effect that assault and battery should be not deemed an accident if “committed by or at the direction of the insured.” Upon the refusal of the company, the insured employed counsel to defend the suit, and at the trial the jury found a verdict for the plaintiff against both defendants in the amount of $250 actual damages and $2,500 punitive damages. The case was then settled by the insured by the payment of the sum of $2,700; and the insured also paid its attorneys $750 for services rendered in defense of the suit. It is conceded that the amounts paid by the insured were reasonable; and the defense is limited to a denial of liability on the part of the Insurance Company to pay to the insured either of the sums expended by it in connection with the suit. The policy required the Insurance Company not only to defray the legal obligations of the insured for damages for bodily injury as aforesaid, but also to defend any suit against the insured alleging such injury and seeking damages therefor, even if the suit should be groundless. Since the complaint in the state court alleged that the assault was committed by Matlack, while acting as the agent of the insured within the course of his employment, and there was nothing in the complaint to indicate that Matlack was acting at the time as an agent in control of the insured, it is obvious that the refusal of the Insurance Company to defend was a breach of its policy and that the company is liable to the insured for the amount of the attorney’s fees. The duty of the insurer to defend a suit ordinarily depends upon the allegations of the complaint. See the decision of this court in Employers Mutual Liability Ins. Co. v. B. L. Hendrix, 4 Cir., 199 F.2d 53. The liability of the Insurance Company for the amount paid in settlement of the damages depends upon whether, in the words of the policy, the assault and battery was committed “by or at the direction of the insured.” The physical actions which constituted the assault and battery were performed by Matlack and at the time he was engaged in the business of the insured and was using a pick-up automobile truck to return an electric motor which the insured had purchased and desired to replace. Mat-lack was the president of the corporation and the owner of one-third of its stock. By reason of these facts the Insurance Company contends that the wrongful act of Matlack was the act of the corporation itself, as distinguished from the act of an agent of the corporation, and hence the assault was committed “by the insured” and was not covered by the policy. The insurance company admits that the policy covers liability for damages for an assault and battery if it is committed by an agent of the insured in the course of his employment, and the liability of the insured rests upon the doctrine of respondeat superior; but it is contended that Matlack’s act was the act of the corporation itself since it was committed not by an ordinary agent but by the president of the company. When the insured in a liability policy is an individual person, there is no difficulty in interpreting the crucial phrase which brings an assault and battery within the coverage, unless committed “by or at the direction of the insured.” In such case the only inquiry is whether the insured personally participated in the act or directed that it be done. It is the intentional commission of the wrong that bars recovery. A corporation, however, can act only through a human agent and in one sense any act of the agent in the course of his employment is the act of the corporation. Nevertheless, it cannot be supposed and it is not centended that the form of policy used in this case was intended to exclude from coverage every assault and battery committed by a corporate agent in the course of his duty, no matter how insignificant his standing and authority may be. That interpretation would render meaningless the assault and battery clause which was obviously inserted to bring the offense within the protection of the policy as far as possible, without running counter to the public policy that forbids an insured to profit by his own wrong doing. See Farm Bureau Mut. Auto. Ins. Co. v. Hammer, 4 Cir., 177 F.2d 793. On the other hand, it cannot be supposed that the insurance contract was intended 'to cover every assault and battery of a corporate agent even though he is clothed with general executive authority to determine the policies of the corporate body and has committed or directed the commission of an assault in conformity therewith. To insure a corporation from loss for such an act would violate the rule of public policy above referred to as clearly as if the insured were a natural person. The problem of coverage in each instance must therefore be resolved by ascertaining the extent of the agent’s authority and the capacity in which he has acted, and whether his action may be deemed to have been performed with the corporation’s knowledge and consent. The agent’s authority may be proved by express grant, or may be inferred from the circumstances, such as the status of the agent, and the acts which he has customarily and openly performed. The determination of the question is not unlike that which confronts the court, when the conviction of a corporation for crime, or the imposition upon it of punitive damages for wanton and malicious conduct is sought and it becomes necessary to show a specific intent on the part of the corporate body. See People v. Canadian Fur Trappers’ Corp., 248 N.Y. 159, 161 N.E. 455, 59 A.L.R. 372; Wardman-Justice Motors v. Petrie, 59 App.D.C. 262, 39 F.2d 512, 69 A.L.R. 648. In the present instance we have no difficulty in concluding that Matlack was not acting in his executive capacity as president of the corporation with the authority of the Board of Directors of the corporation or in the execution of a policy determined by himself under an authority conferred by the corporation. Rather, it seems to us, he was acting as a truck driver who was caught up unexpectedly in an altercation with another driver which led him, on the spur of the moment, to commit the wrongful act; and the liability of the Insurance Company is the same as if he had been an ordinary chauffeur in the company’s employ. For these reasons we conclude that the transaction was covered by the policy. Finally we come to a feature of the case not heretofore discussed. The Insurance Company, before answering the complaint in the pending .case, moved ex parte for leave to file a third party summons and complaint against Matlack under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and leave was granted. The complaint, as filed, was to the effect that the damage suffered by the insured corporation was caused by the acts of Matlack and that he is liable to the corporation for any damages arising therefrom; and that the insurance policy provides that in the event of any payment thereunder, the Insurance Company shall be subrogated to all the insured’s rights of recovery therefor against any person. Under this third party complaint the Insurance Company claimed the right to be reimbursed by Matlack for any sum paid by it to the insured corporation as the result of the pending suit. Subsequently on motion of Matlack the third party action was dismissed on the ground that under the law of South Carolina a party is not entitled to subrogation for the payment of the debt for which another is primarily responsible until he has paid the same, and since the Insurance Company has not paid to the insured the amount claimed by it, the third party action must be dismissed. Rule 14(a) provides in part as follows : “Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him [or to the plaintiff] for all or part of the plaintiff’s claim against him.” The purpose of the rule is to permit additional parties whose rights may be affected by the decision in the original action to be joined and brought in so as to expedite the final determination of the rights and liabilities of all of the interested persons in one suit. That purpose will be facilitated in the pending case if the third party action is entertained, since it may be that Matlack is liable to the insured for the losses suffered by it through his unlawful conduct and, if so, the Insurance Company would be subrogated to the rights of the insured under the express terms of the policy. It is true in South Carolina and elsewhere that the right of subrogation may not be recognized unless the party asserting it has paid the debt on which the right of subrogation is based. American Surety Co. v. Hamrick Mills, 191 S.C. 362, 4 S.E.2d 308, 124 A.L.R. 1147. But this rule applies when the indemnitor brings a separate suit against the person whose action has caused the loss. Rule 14 was designed to prevent this circuity of action and to enable the rights of an indemnitee against an indemnitor and the rights of the latter against a wrongdoer to be finally settled in one and the same suit. It is generally held that it is no obstacle to a third party action that the liability, if any, of the third party defendant can be established only after that of the original defendant and after the satisfaction of the plaintiff’s claim, where subrogation is the basis of the claim. See Lee’s Inc. v. Transcontinental Underwriters, D.C.Md., 9 F.R.D. 470, and cases cited. The situation in the pending case presents no difficulty to the practical application of the rule. The liability of the Atlantic Building Corporation, the insured, to the injured party, and the liability of the Insurance Company to Atlantic grow out of the wrongful acts of Matlack; and it is peculiarly fitting that Matlack’s personal liability to Atlantic and the right of the Insurance Company to subrogation be determined in the same case. We have held in Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, that the question whether a third party defendant may be brought into an action is ordinarily a matter resting within the sound discretion of the judge. In the pending case, however, the third party action was dismissed under the mistaken opinion that the right of the Insurance Company to be subrogated to the rights of the insured could not be determined until the Insurance Company had paid the loss. The third party action was not and could not have been dismissed in the exercise of the court’s discretion, because this would clearly frustrate the purpose of the rule. The case will therefore be remanded so that the claim against the third party may be submitted to the District Court. The judgment of the District Court as to the liability of the Insurance Company to the policy holder for the amounts paid by the insured for damages and counsel fees growing out of the South Carolina case will be affirmed; but the judgment, insofar as it dismissed the third party action, will be reversed and in this respect the case will be remanded for a new trial. Affirmed in part and reversed in part and remanded for further proceedings. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_respond1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). In re ELLESS CO. BLAIR et al. v. FINAN. No. 10707. United States Court of Appeals Sixth Circuit. May 2, 1949. Harold M. Shapero, and Edward T. Goodrich, both of Detroit, Mich., for appellants, Ben. O. Shepherd, of Detroit, Mich. (Ben O. Shepherd and John A. Hamilton, both of Detroit, Mich., on the brief), for appellee. Before SIMONS, McALLISTER and MILLER, Circuit Judges. McAllister, circuit judge. On April 12, 1938, the District Court for the Eastern District of Michigan entered an order confirming a plan of reorganization of The Elless Company, debtor, a Michigan corporation, under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. The Elless Company owned and operated the Whittier Hotel, a large residential and transient hotel overlooking the Detroit River. The premises were subject to trust mortgages securing bonds aggregating more than $3,300,000 and the company was indebted in considerable amounts of money to other creditors, which it was unable to pay. The plan of reorganization provided for a new company to take over the hotel and to issue its stock to the creditors, stockholders, and bondholders of the debtor. Holders of unsubordinated first mortgage bonds were to be allocated 90% of the stock and the balance of 10% was allocated to other creditors and to the stockholders of the debtor. The plan further provided that the 90% of the stock allocated to the mortgage bondholders was to be placed in a voting trust; that the trust was to have three trustees, to be appointed by the court; and that it was to continue for a period of eight years, terminating on May 1, 1946. Upon the approval of the plan by two-thirds of the creditors, as required by statute, the court confirmed it; a new Michigan corporation known as the Whittier Corporation, was organized, took title to the hotel, and issued the stock in accordance with the plan; and the trust agreement was carried out, the stock being placed in the voting trust for an eight-year period, and trustees of the voting trust, being appointed by the court. The order confirming the plan of reorganization provided: “This court reserves jurisdiction over the stock trust aforesaid and over the property of the new corporation and over the trustees from time to time acting as trustees under said trust agreement for the purpose of supervising the acts and doings of such trustees and appointing and removing them, and for the purpose in all respects of protecting and safeguarding the rights of the holders of trust certificates from time to time outstanding. Each and all of the holders and owners of trust certificates from time to time outstanding be, and they are hereby, forever jointly and severally enjoined from commencing or prosecuting any proceedings of any nature whatsoever against the new corporation or any of its property or against the trustees or any of them without first obtaining the approval of this court after due notice to all parties in interest. “The court reserves jurisdiction herein to enter such further orders as may hereafter be deemed necessary or proper in connection with the carrying out of the terms and provisions of the said plan of reorganization as approved and confirmed herein.” The trust agreement approved by the court provided: “This Trust Agreement shall terminate, in any event, on the 1st day of May, 1946, without notice by or to, or action on the part of the Trustees, or any other parties hereto, but it may be terminated at any earlier date by resolution of a majority of the Trustees, or by the Court, in the manner herein provided. * * * In case of termination by the Court, such termination shall become effective upon the entry of the order by the Court, or at such later date as shall be specified by the Court in such order.” Under the voting trust, it was provided that a majority of the trustees, with the approval of the court, could amend the trust agreement upon giving twenty days’ notice to stockholders of the proposed amendment, or modification, provided that it would not become effective if, within twenty days, holders of 25% of the stock certificates objected thereto, unless holders of 51% of the certificates consented thereto in writing. On February 28, 1946, the trustees filed a petition with the Court reciting that, acting under the foregoing provision, they had adopted a resolution amending the trust agreement by extending the term of the voting trust from May 1, 1946 to May 1, 1951. The petition asked the court to enter an order approving the execution of an instrument attached to the petition, amending the original voting trust agreement as to its term, and including the following new sections : “Section 1. This Trust Agreement shall terminate, in any event, on the 1st day of May, 1951, without notice by or to, or action on the part of the Trustees, or any other parties hereto, but it may be terminated at any earlier date by resolution of a majority of the Trastees, or by the Court, in the manner herein provided. * ;J< * * * * “In case of termination by the Court, such termination shall become effective upon the entry of the order by the Court, or at such later date as shall be specified by the Court in such order.” The district judge who entered the original order confirming the reorganization plan, thereupon entered an order approving the proposed amendment increasing the life of the voting trust for an additional five years until 1951, and directing notice to be given all certificate holders, and further ordered that after such notice had been given, the proposed amendment would become effective on April 3, 1946, unless on or before that date, the holders of certificates representing 25'% of the capital stock of the Whittier Corporation should advise the trustees in writing of their objection to, and dissent therefrom. It was further provided in the order: “That this court hereby reserves jurisdiction of this matter for the purpose of determining any and all controversies that may arise with respect to said proposed amendment and for the purpose of giving any instructions to- said Trustees that may be necessary or proper in connection with said proposed amendment.” Objections not having been made by the holders of the certificates before the date prescribed in the order approving the amendment, it was considered that the original trust agreement was, accordingly, amended and the term of the trust extended an additional five years. On May 20, 1947, however, appellee Fi-nan filed his petition to set aside the order of the court approving the extension of the term of the trust agreement, to discharge the trustees of the voting trust and terminate their authority, and to enjoin permanently such trustees from voting any of the stock confided to them by virtue of the trust. Among the reasons asserted in support of the petition were (1) that the order attempted to make effective an agreement in violation of Section 34 of Act 327 of the Public Acts of Michigan of 1931, which prohibits shareholders from entering into a voting trust agreement for a period exceeding ten years; (2) that the order attempted to make ineffective the provision of the articles of incorporation of the Whittier Corporation limiting the term, of the trust agreement to eight years; and (3) that the court lacked jurisdiction to enter the order because the plan of reorganization had been successfully consummated. Answer to the petition was filed by the Whittier Corporation and the trustees of the voting trust; and two holders of certificates, representing shares of stock of the corporation, were allowed to intervene and file answers. On the hearing, the district court entered a final order terminating the voting trust and directing the trustees to deposit with the depositary named in the trust agreement all assets, including the stock certificates evidenced by the trust certificates, and with authority to such depositary to deliver such assets, including the stock certificates in exchange for the trust certificates, to the persons entitled to receive them. It was further provided in the order that upon such deposit of certificates by the trustee for delivery to the owners, all liability of the trustees for the delivery thereof should cease, and the trustees would not be required to take any further action of any nature under the trust agreement. From this order, the Whittier Corporation, the trustees of the voting trust, the intervening petitioners, hereafter referred to as appellants, unite in one appeal. Petitioner Finan, hereafter referred to as appellee, appeals on grounds that the order of the court was inadequate in not granting sufficient relief. Appellants contend that the amendment extending the life of the voting trust was valid; that the termination of the trust by the court sua sponte was beyond its jurisdiction; and that even though its reserved jurisdiction was broad enough to authorize the termination of the trust, its action in terminating it was an abuse of discretion. The only reason given to the court by the trustees, in their petition, for approval of the amendment increasing the life of the voting trust was that they “believe that the only way in which the owners of small amounts of stock now in said Voting Trust can be adequately protected is by a continuance of the trust created by said agreement.” In confirming a plan of reorganization, the court may only retain jurisdiction in order to protect its decree, to prevent interference with the execution of the plan, and to aid otherwise in its operation, and may not, through the device of retaining jurisdiction, keep a debtor in tutelage. Towers Hotel Corp. v. Lafayette National Bank, 2 Cir., 148 F.2d 145. It is true that the court retains certain jurisdiction in a reorganization proceeding, after confirmation of a plan, to see that it is consummated. North American Car Corporation v. Peerless Weighing & Vending Mach. Corporation, 2 Cir., 143 F.2d 938. But any reservation of jurisdiction beyond what is requisite to effectuate a plan of reorganization is beyond the power of the reorganization court. Reese v. Beacon Hotel Corp., 2 Cir., 149 F.2d 610. See also In re Flatbush Ave. — Nevins St. Corporation, 2 Cir., 133 F.2d 760. The order extending the voting trust agreement was not necessary to effectuate the plan of reorganization. It was unnecessary for the protection of the original order confirming the plan, or to prevent interference with its execution. It was beyond the jurisdiction of the district court, acting through another judge in prior proceedings, to enter the order extending the life of the voting trust. Furthermore, the order of the court was in violation of the Michigan law limiting the term of a voting trust to ten years. See Appon, et al. v. Belle Isle Corp. et al., Del.Ch., 46 A.2d 749; Gaskill v. Gladys Belle Oil Co., 16 Del.Ch. 289, 146 A. 337. The plan of reorganization was adopted, the voting trust set up, and the voting trustees appointed by the court for one purpose — to relieve the debtor from the pressure of its obligations which would prevent it from operating, to reduce its indebtedness to an amount that would permit it to operate as a solvent corporation, and, upon this being accomplished, to liberate it from the supervision of the court. The original trust agreement of May 1, 1938, as well as the amendment thereto of February 28, 1946, provided that it might be terminated at any date before the date of termination therein provided by resolution of the majority of the trustees, or by the court, effective upon entry of its order or at such later date as should be therein specified. On the hearing of the petition of appellee Finan, it was admitted that the Whittier Corporation had a capital and surplus of $2,000,000, that it had no obligation except its stock, and that it was paying dividends to its stockholders. Two years before that time, in 1946, when the petition to amend the trust agreement was filed, it was in a similarly good financial condition. No question was raised concerning its ability to carry on as a successful business enterprise without the further aid of the court. In its opinion holding that the trust should be terminated, the district court declared that the purposes of the plan of reorganization had been completely and successfully consummated, and that it was clear that, while the court and the parties to the agreement contemplated that the purposes of the plan of reorganization would be accomplished in eight years, it was their intention that the trust should terminate before that time, whenever final consummation of its purposes was achieved. Since no showing had been made indicating the necessity for continuing the trust, the court declared that it should no longer keep the Whittier Corporation “under its guardianship” and sua sponte terminated the trust agreement and considered the petition as one to conclude finally the proceedings. We concur in this view and determination of the district court. The trust was established and the voting trustees were appointed by virtue of the order of the court in statutory reorganization proceedings with the purpose of enabling the corporation to operate as a solvent business enterprise. That purpose was fulfilled. “Since the purpose of reorganization clearly is to rehabilitate the business and start it off on a new and to-be-hoped-for more successful career, it should be the objective of courts to cast off as quickly as possible all leading strings which may limit and hamper its activities and throw doubt upon its responsibility. North American Car Corporation v. Peerless Weighing & Vending Mach. Corporation, supra [143 F.2d 940]. “Congress did not intend that the Bankruptcy Court should, after an approval of a plan under Chapter X, Bankr. Act, 11 U.S.C.A. § 501 et seq., have power to remain a wet-nurse to the reorganized company. A bankruptcy court cannot obtain that power merely by inserting a provision reserving jurisdiction.” In re Flat-bush Ave. Nevins St. Corporation, supra [133 F.2d 762], It is further contended that, assuming the order extending the term of the voting was' invalid, the court could not sua sponte order the termination of the trust, discharge the trustees, and enjoin them from voting the stock, since it was entirely within the province of the stockholders to continue voluntarily to leave their stock in the trust, permitting it to be voted by the voting trustees, and that they were free to withdraw from the voting trust at any time they so' desired. This overlooks the realities of the case. The voting trust came into being because of compulsion — a compulsion arising out of the insolvency proceedings. In its origin, the plan embodying the trust was to save the assets through the action of the court for the benefit of the bondholders,' stockholders, and creditors. They were forced by necessity to consent to the trust, and to the relinquishment of their rights to the1 voting trustees. Since the original purpose of the plan of reorganization' has been effected, each stockholder is entitled to vote his stock and enter into combinations for management or control unhindered and unobstructed by the voting trust combination that exists only through the order of the court. As was well said with respect to a somewhat similar situation, appellants, relying upon the inertia of the certificate holders, ''and the favorable provisions of the trust agreement which make non-action by the beneficiaries, approval of the action of the trustees, sought to use the assets and facilities of the trust to retain their control of the stock of the passive beneficiaries and force dissident beneficiaries to withdraw and place themselves among the minority stockholders. They are not entitled to that advantage. Upon the dissolution of the trust, all parties to it have the privilege of entering or abstaining from entering into a voting trust. A new voting trust requires affirmative action by each stockholder in entering into the agreement and depositing his stock. If all the stockholders are freed from the voting trust by its dissolution, the trustees would face a far more difficult task in forming a new trust and petitioner and others would be in a better situation to organize a more favorable combination or voting trust. See Olson v. Rossetter, 330 Ill.App. 304, 71 N.E.2d 556, 563, affirmed 399 Ill. 232, 77 N.E.2d 652. While appellee did not, in his petition, ask the court to terminate the trust agreement, he did challenge the validity of the order extending the trust, and asked for an order to show cause why the trustees ihould not be discharged, their authority under the voting trust terminated, and that they be permanently enjoined from voting any of the stock which they held as trustees. Under the petition, as well as under all of the other circumstances of the case, t was proper for the court sua sponte to consider the petition as one to conclude finally the proceedings, and to terminate the trust agreement. In terminating the trust and finally concluding the proceedings, the court had the power to determine all matters with respect to the trustees theretofore appointed by it by virtue of the statutory provisions. Since it appeared that the trustees would continue to vote the stock in the voting trust, even after termination of the trust by the court, the order should have included provision, in accordance with petitioner’s request, that the trustees be discharged and that they be enjoined from further voting of the stock in the voting trust. In accordance with' the foregoing, the case is remanded to the district court for entry of an order consonant with this opinion. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_constit	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward TERRY, Defendant-Appellant. No. 89-10121. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 16, 1989. Decided Aug. 14, 1990. As Amended Nov. 9, 1990. Alan P. Caplan, San Francisco, Cal., for defendant-appellant. Robert M. Twiss, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee. Before SCHROEDER, NELSON and WIGGINS, Circuit Judges. NELSON, Circuit Judge: Defendant/Appellant Edward Terry was convicted for being a felon in possession of a firearm. He had been indicted on two drug related counts as well as the firearm count. There was a mistrial on the drug counts. Terry appeals his conviction on four grounds. He argues that 1) the search of his residence where the gun was discovered was invalid; 2) the drug and firearm counts were misjoined; 3) there was not sufficient evidence to support his conviction; and 4) the trial judge erred by issuing a new instruction which redefined “constructive possession” without first affording counsel an opportunity to evaluate that instruction, formulate objections to it or to suggest a different response. We find that there was sufficient evidence to convict and that the affidavit underlying the search warrant provided probable cause for the search. However, it was error for the district court to join all three counts and to instruct the jury in the midst of deliberations on a different and incorrect definition of constructive possession. Therefore, we reverse the conviction and remand for retrial. FACTUAL AND PROCEDURAL BACKGROUND On June 9, 1989, Terry intended to meet his wife and daughter at her parents’ home in Pittsburg, California. That morning, however, his son David was arrested for possession of methamphetamine. After posting bond for his son, Terry took David to Terry’s home. Shortly thereafter, two or three friends of David’s arrived, stood in the driveway near Terry’s pickup truck whose bed was covered, and spoke with David. Terry and a friend went into the house. After 15-20 minutes Terry came out and drove to Pittsburg. Approximately 40 miles away from his residence, Terry was stopped by CHP Officer Paul Vacarezza. As he was driving behind Terry’s truck, Vacarezza smelled a strong “chemical type” odor, which he suspected was methamphetamine. After following Terry’s vehicle for awhile Vacarez-za noticed a brownish liquid leaking from the bed of the vehicle. Vacarezza pulled the truck over. Vacarezza and another officer first searched the cargo area of the truck under the cover. They found a gallon-size plastic milk container in a brown paper bag. Under the driver’s side of the seat the police found plastic baggies containing a white powdery substance and $10,000 in U.S. currency bundled in mixed bills. The white powdery substance tested positive for methamphetamine. The brown liquid tested positive as Phenyl-2-Propanone (P-2P), a precursor chemical for the manufacture of methamphetamine, which is itself a controlled substance under federal law. Terry was arrested and booked. Eight days after Terry’s arrest, Agent Wertman applied for a warrant to search Terry’s home. Wertman’s accompanying affidavit stated that in his experience methamphetamine traffickers usually keep currency and money derived from drug sales along with paraphernalia and records related to the sale of methamphetamine on their persons, in their residences or in attached structures. On the basis of this affidavit, a search warrant was issued. Five days later, Agent Wertman and others searched Terry’s home looking for methamphetamine and dangerous drugs, paraphernalia, records, articles of personal property showing the identity of persons in control of the premises, and currency. During the search the agents found nothing listed in the search warrant. However, Officer Stephen Harris found a shotgun on a shelf just inside the closet in the master bedroom. Terry was subsequently indicted for possession of methamphetamine, distribution and possession of P-2-P with intent to manufacture methamphetamine, and being a felon in possession of a firearm. Because Terry had sustained three previous felony convictions between 1959 and 1973 the government included notice that it would seek sentence enhancement under the Armed Career Criminal Act. Before trial, Terry filed a Motion for Severance of Counts seeking to have the drug offenses tried separately from the firearm offense. The motion was denied. At trial Agent Wertman and Officer Harris testified as to the actual seizure of the shotgun from the Terrys’ bedroom closet noting that the gun was found on a shelf containing only the shotgun and men’s boots. Wertman testified that the other side of the closet held only women’s clothing. In addition to this testimony, the jury was read a stipulation that defendant had been convicted of a crime for which the maximum punishment included imprisonment in excess of one year and that the seized shotgun had been manufactured outside of the State of California. One of Terry’s witnesses, Mulcahy, testified that defendant had informed Mulcahy that he was not allowed to possess firearms because he was a felon. Paula Terry, appellant’s wife, testified that the gun was given to her by her cousin for the purposes of protecting her family and that she knew her husband was not allowed to have guns. Paula also testified that she kept the shotgun on the shelf in the only closet which they shared. It was located on this shelf in order to minimize their daughter’s awareness of its presence and her ability to reach it. Paula Terry’s cousin testified that he had given Paula the same shotgun that the government had seized. At the end of the trial the district court agreed to use the jury instruction that both Terry and the government proposed. When the jury later expressed confusion over the language of the instruction, the judge submitted a new instruction to the jury using language substantially different from that of the first instruction. Defense counsel objected to the second set of jury instructions on constructive possession because its terms had not been defined to the jury and counsel had not been allowed to argue to the jury about how to evaluate the evidence in light of this instruction. The jury delivered a verdict of “guilty” as to Count Three, the firearms charge, and were 8-4 in favor of acquittal on the drug charges. The Court declared a mistrial as to those counts. Terry filed a motion opposing the imposition of an enhanced sentence pursuant to 18 U.S.C. § 924(e), which was denied. Terry was sentenced to the mandatory minimum term of imprisonment of 15 years without parole, a fine of $1000 and a 5-year term of supervised release. On March 9,1989 Terry timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1291. DISCUSSION I. Probable Cause to Issue Search Warrant A. Standard of Review A magistrate’s determination of probable cause to issue a search warrant is accorded great deference and is reversed only if that determination is clearly erroneous. United States v. Espinosa, 827 F.2d 604, 610 (9th Cir.1987), cert. denied 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988). “[T]he traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1982) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987). “In borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it.” United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1987). B. Legality of the Warrant The warrant in this case was based on the Wertman affidavit. The affidavit contained two bases for probable cause: 1) the results of the search of Terry’s truck; and 2) Agent Wertman’s past experience that methamphetamine drug traffickers keep drugs, paraphernalia, records and money in their homes or adjoining structures. A magistrate is permitted to draw reasonable inferences about where evidence is likely to be kept based on the nature of the evidence and the type of offense. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Hendricks, 743 F.2d 653, 655 (9th Cir.1984), cert. denied 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985). He “need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place.... The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.” United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (citations omitted), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). Moreover, “a magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found.” Fannin, 817 F.2d at 1382. The Ninth Circuit has recognized that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” Angulo-Lopez, 791 F.2d at 1399. Under the law of this circuit, then, Agent Wert-man’s first hand knowledge of Terry’s possession of methamphetamine and his experience with other drug dealers provided the magistrate with “a reasonable ground to believe” that contraband might be found in Terry’s residence. United States v. Damitz, 495 F.2d 50, 55 (9th Cir.1974). We find, therefore, that the magistrate had a substantial basis for finding probable cause and issuing the warrant to search Terry’s home. II. Joinder of the Drug Charges with the Firearm Charge A. Standard of Review Misjoinder of charges is a question of law reviewed de novo. United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir. 1988), cert. denied, — U.S.-, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989); United States v. Sanchez-Lopez, 879 F.2d 541, 550 (9th Cir.1989). B. Misjoinder under Rule 8(a) Before trial, Terry filed a Motion for Relief from Improper Joinder of Counts alleging that the drug charges (counts one and two) had been misjoined with the firearm charge (count three) in violation of Rule 8(a). It was denied. On appeal the government argues that the charges were not misjoined and that Terry waived appellate review by failing to renew the motion to sever at the close of the evidence. Two offenses may be joined in the indictment under Rule 8(a) “only ‘if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ ” United States v. Smith, 795 F.2d 841, 850 (9th Cir.1986) (quoting Fed.R.Crim.P. 8(a)), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987). The term “transaction” is to be interpreted flexibly and “may comprehend a series of related occurrences.” United States v. Kinslow, 860 F.2d 963, 966 (9th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 96, 107 L.Ed.2d 60 (1989). Because Rule 8 is concerned with the propriety of joining offenses in the indictment, the validity of the joinder is determined solely by the allegations in the indictment. See Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir.1988). The indictment in the case at bar clearly fails to allege any commonality between the first two counts and count III. Count I and II describe an event occurring on June 9,1988 in San Joaquin County. Count III describes an event occurring on June 22, 1988 in another city and county. The drug crimes referred to in Counts I and II are wholly different from the possession of a firearm charge in Count III. No effort is made in the indictment even to suggest that the offenses are of the same or similar character or that they are part of the same transaction or parts of a common scheme. In addition, the evidence necessary to prove Count III did not overlap with the evidence required to prove Counts I and II. Compare Schaffer, 362 U.S. at 514-15, 80 S.Ct. at 947-48 (finding that when the indictment invites joint proof, the prima facie validity of joinder is shown); United States v. Portac Inc., 869 F.2d 1288, 1294 (9th Cir.1989) (“Joinder is proper when the same facts must be adduced to prove each of the joined offenses.”); United States v. Montes-Cardenas, 746 F.2d 771, 776 (11th Cir.1984) (“Two crimes are connected together if the proof of one crime constitutes a substantial portion of the proof of another.”). When, as in this case, joined offenses are not connected and are not provable by the same evidence, joinder is improper. United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978). A violation of Rule 8 “requires reversal only if the misjoinder results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). Terry argues that he was prejudiced because his association with drugs would necessarily be highly inflammatory in the minds of jurors. We agree. A juror would inevitably be more disturbed about the idea of a “drug dealer” with a gun than a citizen who previously had committed some unknown crime. It is highly probable that this inculpatory characterization of Terry as a drug dealer influenced the jury in determining its verdict. Finally, the government argues that the issue of impermissible joinder has been waived because the defendant’s “Motion for Relief from Improper Joinder of Counts for Trial Under Federal Rule of Criminal Procedure 8(a)” was not renewed at the end of the trial. While it is clear that a Rule 14 motion to sever must be renewed at the close of the evidence or it is waived, United States v. Burgess, 791 F.2d 676, 678 (9th Cir.1986), there is no such requirement for a Rule 8 motion. The rationale behind the renewal requirement in the Rule 14 context is inapplicable to Rule 8. A Rule 14 motion must be renewed in order to allow the trial court to assess whether the joinder was prejudicial and to prevent a defendant from deliberately failing to make a meritorious motion and waiting to see what verdict the jury returns. United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988). A Rule 8 motion, in contrast to Rule 14, disputes the propriety of joining charges in the indictment. Rather than being decided at the discretion of the lower court judge it permits joinder only under certain specific circumstances. With Rule 8, unlike Rule 14, it is not necessary for the “trial court to assess whether a joinder is prejudicial at a time when the evidence is fully developed, the parties are best prepared and the witnesses’ recollections freshest” because the issue is whether the indictment was improperly joined. Free, 841 F.2d at 324. Because the propriety of a Rule 8 joinder is determined solely by the initial allegations of the indictment, there is no need to assess what actually happened in the trial. In addition, there is a requirement that in order to preserve the issue for appeal a Rule 8 motion must be made before jury deliberations. See Smith, 795 F.2d at 850. Thus, there is no opportunity for a defendant to “deliberately fail to make a meritorious motion.” Free, 841 F.2d at 324. For the foregoing reasons, it is unnecessary to renew a Rule 8 misjoinder objection to preserve it for appeal. III. Sufficiency of the Evidence A. Standard of Review “In reviewing the sufficiency of the evidence, we determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. The test is whether the evidence and all reasonable inferences which may be drawn from it, when viewed in the light most favorable to the government, sustain the verdict.” United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 70 (1987). B. Proof Required for Constructive Possession To prove constructive possession, the government must prove “a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the substance.” United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). It is not the same as merely knowing the weapon is nearby. “The circumstances of each case must be examined to determine if there is ‘such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant’s dominion and control as if it were actual possession.’ ” United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970) (quoting United States v. Casalinuovo, 350 F.2d 207, 209-11 (2nd Cir.1965)). There are various ways to prove that a defendant has dominion and control. For example, “[i]f the defendant has exclusive control over the premises where contraband is found, then knowledge and control may be inferred.” United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir.1985). In the more difficult situation where the premises are shared by more than one person, the Ninth Circuit has found that if a party has knowledge of the weapon and both the power and the intention to exercise dominion and control over it, then he has constructive possession. Cousins, 427 F.2d at 384; see also United States v. Rhodes, 713 F.2d 463, 470 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 535, 78 L.Ed.2d 715 (1983); United States v. Espinosa, 827 F.2d 604, 614 n. 6 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988). Although the issue is close, we find that under the highly deferential standard of review there was sufficient evidence to sustain the verdict. The evidence against Terry centered on the fact that the firearm was found in the closet of his bedroom. Terry and his wife are the owners of the house and sole occupants of the bedroom where the firearm was found. Only Terry’s wife prevented Terry from accessing the gun. Terry was the only person present when the home was searched. The gun was found on the shelf in the closet where both Terry and his wife kept their clothes. The shelf also held men’s boots. Men’s clothing was on the same side of the closet. Terry provided evidence that the firearm had been given to his wife for her protection and that the only shelves in the closet were on the same side as the men’s clothing. There was no evidence that he had ever touched the gun. On the basis of this evidence, a rational trier of fact could find that Terry’s knowledge of the gun’s location and his unhindered access to it whenever his wife was not observing gave him constructive possession of the weapon. IV. Jury Instruction A. Standard of Review We review whether a jury instruction was an accurate statement of the law de novo. See United States v. Spillone, 879 F.2d 514 (9th Cir.1989) (“[Wjhether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo.”); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The de novo standard of review is appropriate, where, as in this case, an objection was raised below to the jury instruction. Where no objection is made below, the appropriate standard of review is plain error. Fed.R.Crim.P. 30; United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987). We “ ‘determine whether, viewing the instructions as a whole, the court gave adequate instruction on each element of the case to ensure that the jury fully understood the issues,’ and to determine ‘whether the instruction is misleading or states the law incorrectly to the prejudice of the objecting party.’ ” Espinosa, 827 F.2d at 614 (quoting Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986)). B. Accuracy of the Constructive Possession Instruction Both the government and Terry agreed to the first instruction given to the jury: A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or person, is then in constructive possession of it. In the midst of jury deliberations, the foreman requested clarification of the term “intention at a given time”. The court elected to give a broad “on or about instruction”, a reminder that the instructions should be considered as a whole, and a rereading of the “constructive possession” instruction. The Court then asked the jurors if that answered their question. In response to the Court’s inquiry, the foreman said: At a given time, whether that did vary. The word ‘intention’ in that, there was no evidence that we could find that showed that an intention existed to use the weapon and therefore, maybe that would reduce the constructive — or eliminate the constructive possession in the mind of this one individual. The court asked to be brought the Ninth Circuit Pattern Instruction Book. The Court then told the jury: Let me now say having given that instruction I don’t like it because you focused in on a problem in that instruction and it’s use of the word ‘intention.’ Let me see if I have another instruction here that might help. The court read to the jury a new definition of constructive possession: Possession means having physical control of a thing. That control may be direct, as by actually holding the thing or indirect by having the power to control the thing while someone else may actually be holding it. The jury may find possession where one person alone has possession or where that person shares control with other persons. The Court then told the jury, “See, that doesn’t use that other — the intention aspect of that other instruction.” The jury was then excused and a copy of the new instruction was delivered to the jury room. The first constructive possession instruction given to the jury was “a correct statement of the law.” Espinosa, 827 F.2d at 614, n. 6. The second instruction, however, would allow a jury to convict without finding all the necessary components of constructive possession. “While the term ‘constructive possession’ is not free from ambiguity”, United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970), none of this court’s definitions of the term comport with the second instruction submitted to the jury. Constructive possession “has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property.” Id.; Rhodes, 713 F.2d at 471. To sustain a conviction on the basis of constructive possession, “the Government was required to prove that [the defendant] had dominion and control of the [contraband] and knowledge of their existence.... ‘Mere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession.’ ” United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir.1988) (quoting United States v. Rodgriguez, 761 F.2d 1339, 1341 (9th Cir.1985)); United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, — U.S.-, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). Other constructive possession definitions are similar. “A person may not be convicted of illegal possession unless he knows contraband is present and is capable of exercising dominion and control over the contraband.” United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987); Rodriguez, 761 F.2d at 1341; United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir.1987). The government “must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which contraband is concealed.” United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989); Soto, 779 F.2d at 560. All Ninth Circuit case law requires that the defendant have knowledge of the presence of the contraband as an element of constructive possession. The cases also add some element that distinguishes possession from mere presence or accessibility. It is not enough that a person has the power to control the contraband, in the sense that he simply is in the presence of the contraband and could reach out and take it. Compare United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir.1987) (holding that the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon.). The 1985 Ninth Circuit Pattern Instruction given in this case by the lower court judge simply required that a person “hav[e] the power to control the thing”. It would allow a conviction based on mere accessibility without knowledge or actual dominion or control. This error has been corrected in the 1989 Pattern Instructions which provide that “[a] person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.” Manual of Model Criminal Jury Instructions for the Ninth Circuit § 3.16 (1989). Although the first instruction was accurate, its combination with the erroneous supplementary instruction misled the jury. After the judge read the second instruction, the jury was given a written copy of it. The judge also emphasized to the jury that “I don’t like” the first instruction. The court was clearly suggesting to the jury that the second instruction, which would allow conviction on a basis not permitted under the law, was the one they were to follow. Thus, we conclude that the constructive possession instruction given to the jury was improper and we reverse the conviction. See United States v. Bagby, 451 F.2d 920, 927 (9th Cir.1971) (“[A] conviction should not rest on ambiguous and equivocal instructions to the jury on a basic issue”). CONCLUSION The judgment is REVERSED and the case is REMANDED for retrial. . At the trial, none of the evidence was applicable to both counts and none of the witnesses testified as to both counts. . The government argues that the charges can be joined because a gun found at a residence is integrally related to drug trafficking. They cite to numerous cases none of which allowed the joinder of a drug charge with a firearm charge when the gun was not discovered at the same time and place as the drugs. All the cases cited by the government in support either involve firearms found in defendants’ possession at the time of their arrests, see U.S. v. Mason, 658 F.2d 1263 (9th Cir.1981); U.S. v. Moore, 580 F.2d 360 (9th Cir.) cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978), or guns and ammunition found during the same search or arrest which uncovered the drugs. See U.S. v. Montes-Cardenos, 746 F.2d 771 (11th Cir.1984); U.S. v. Weiner, 534 F.2d 15 (2nd Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); U.S. v. Romero, 692 F.2d 699 (10th Cir.1982); U.S. v. Mareno, 658 F.2d 1120 (6th Cir.1981); U.S. v. Cannon, 472 F.2d 144 (9th Cir.1972). We never have held that, as a matter of law, a gun offense always can be joined with a drug offense. . The government suggests that the improper joinder was harmless error because the jury’s split verdict indicated that they could separate the issues in their mind. A mixed verdict alone, however, it not dispositive. As five members of a divided en banc panel of the Eighth Circuit said, we cannot say that ‘the spillover effect of the joinder ... did not taint the jury’s deliberation.... [A]bsent the prejudicial joinder the jury might have acquitted on more counts....’ U.S. v. Grey Bear, 863 F.2d 572, 579 (8th Cir.1988) (opinion of group of five judges who found joinder improper. Note that the district court’s order finding joinder proper was affirmed by an equally divided vote of the court sitting en banc). . The government cites three cases in support of the proposition that a defendant waives appellant review if he fails to renew a Rule 8 motion. Two of the cases, United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988) and United States v. Burgess, 791 F.2d 676 (9th Cir.1986), discuss Rule 14 motions only. In the third, United States v. Loya, 807 F.2d 1483, 1494 (9th Cir.1987), the court required renewal of a pretrial motion that relied on both Rule 14 and Rule 8. The Loya court cited Burgess, 791 F.2d 676, suggesting that it was referring to the requirements of a Rule 14 motion. There was no discussion of the renewal requirements for a Rule 8 motion. . The government has asserted incorrectly that they need only prove that Terry had the ability to exercise dominion and control. To prove constructive possession the government must produce evidence showing that a defendant did exercise ownership, dominion or control over the contraband itself or the premises or vehicle in which the contraband is concealed. U.S. v. Shirley, 884 F.2d 1130 (9th Cir.1989). . In addition appellant argues that his sentence was improperly enhanced on the basis of a prior burglary conviction. Because we are reversing the judgment against Terry it is unnecessary for us to reach the question of a proper sentence. 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_issuearea	L	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. KNIGHT, trustee of WILLIAM L. RUDKIN TESTAMENTARY TRUST v. COMMISSIONER OF INTERNAL REVENUE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 06-1286. Argued November 27, 2007 Decided January 16, 2008 Roberts, C. J., delivered the opinion for a unanimous Court. Peter J. Rubin argued the cause for petitioner. With him on the briefs were Cornelia T. L. Pillará, Walter Dellinger, Carol A. Cantrell, Michael D. Martin, and Jonathan S. Massey. Eric D. Miller argued the cause for respondent. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Morrison, Deputy Solicitor General Hungar, Acting Deputy Assistant Attorney General Rothenberg, Anthony T. Sheehan, and Donalá L. Korb Briefs of amici curiae were filed for the American Bankers Association et al. by Gregory F. Taylor and Lisa Bleier; and for the Tax Section of The Florida Bar by Angela C. Vigil, Jonathan Blattmachr, and David Pratt. Chief Justice Roberts delivered the opinion of the Court. Under the Internal Revenue Code, individuals may subtract from their adjusted gross income certain itemized deductions, but only to the extent the deductions exceed 2% of adjusted gross income. A trust may also claim those deductions, also subject to the 2% floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the 2% floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they generally are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals. I The Internal Revenue Code imposes a tax on the “taxable income” of both individuals and trusts. 26 U. S. C. § 1(a). The Code instructs that the calculation of taxable income begins with a determination of “gross income,” capaciously defined as “all income from whatever source derived.” § 61(a). “Adjusted gross income” is then calculated by subtracting from gross income certain “above-the-line” deductions, such as trade and business expenses and losses from the sale or exchange of property. § 62(a). Finally, taxable income is calculated by subtracting from adjusted gross income “itemized deductions” — also known as “below-the-line” deductions — defined as all allowable deductions other than the “above-the-line” deductions identified in § 62(a) and the deduction for personal exemptions allowed under § 151 (2000 ed. and Supp. V). . § 63(d) (2000 ed.). Before the passage of the Tax Reform Act of 1986, 100 Stat. 2085, below-the-line deductions were deductible in full. This system resulted in significant complexity and potential for abuse, requiring “extensive [taxpayer] recordkeeping with regard to what commonly are small expenditures,” as well as “significant administrative and enforcement problems for the Internal Revenue Service.” H. R. Rep. No. 99-426, p. 109 (1985). In response, Congress enacted what is known as the “2% floor” by adding §67 to the Code. Section 67(a) provides that “the miscellaneous itemized deductions for any taxable year shall be allowed only to the extent that the aggregate of such deductions exceeds 2 percent of adjusted gross income.” The term “miscellaneous itemized deductions” is defined to include all itemized deductions other than certain ones specified in § 67(b). Investment advisory fees are deductible pursuant to 26 U. S. C. §212. Because §212 is not listed in § 67(b) as one of the categories of expenses that may be deducted in full, such fees are “miscellaneous itemized deductions” subject to the 2% floor. 26 CFR § 1.67-1T(a)(1)(ii) (2007). Section 67(e) makes the 2% floor generally applicable not only to individuals but also to estates and trusts, with one exception relevant here. Under this exception, “the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual, except that.. . the deductions for costs which are paid or incurred in connection with the administration of the estate or trust and which would not have been incurred if the property were not held in such trust or estate ... shall be treated as allowable” and not subject to the 2% floor. § 67(e)(1). Petitioner Michael J. Knight is the trustee of the William L. Rudkin Testamentary Trust, established in the State of Connecticut in 1967. In 2000, the Trustee hired Warfield Associates, Inc., to provide advice with respect to investing the Trust’s assets. At the beginning of the tax year, the Trust held approximately $2.9 million in marketable securities, and it paid Warfield $22,241 in investment advisory fees for the year. On its fiduciary income tax return for 2000, the Trust reported total income of $624,816, and it deducted in full the investment advisory fees paid to Warfield. After conducting an audit, respondent Commissioner of Internal Revenue found that these investment advisory fees were miscellaneous itemized deductions subject to the 2% floor. The Commissioner therefore allowed the Trust to deduct the investment advisory fees, which were the only claimed deductions subject to the floor, only to the extent that they exceeded 2% of the Trust’s adjusted gross income. The discrepancy resulted in a tax deficiency of $4,448. The Trust filed a petition in the United States Tax Court seeking review of the assessed deficiency. It argued that the Trustee’s fiduciary duty to act as a “prudent investor” under the Connecticut Uniform Prudent Investor Act, Conn. Gen. Stat. §§45a-541a to 45a-541£ (2007), required the Trustee to obtain investment advisory services, and therefore to pay investment advisory fees. The Trust argued that such fees are accordingly unique to trusts and therefore fully deductible under 26 U. S. C. § 67(e)(1). The Tax Court rejected this argument, holding that § 67(e)(1) allows full deductibility only for expenses that are not commonly incurred outside the trust setting. Because investment advisory fees are commonly incurred by individuals, the Tax Court held that they are subject to the 2% floor when incurred by a trust. Rudkin Testamentary Trust v. Commissioner, 124 T. C. 304, 309-311 (2005). The Trust appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals concluded that, in determining whether costs such as investment advisory fees are fully deductible or subject to the 2% floor, § 67(e) “directs the inquiry toward the counterfactual condition of assets held individually instead of in trust,” and requires “an objective determination of whether the particular cost is one that is peculiar to trusts and one that individuals are incapable of incurring.” 467 F. 3d 149, 155, 156 (2006). The court held that because investment advisory fees were “costs of a type that could be incurred if the property were held individually rather than in trust,” deduction of such fees by the Trust was subject to the 2% floor. Id., at 155-156. The Courts of Appeals are divided on the question presented. The Sixth Circuit has held that investment advisory fees are fully deductible. O’Neill v. Commissioner, 994 F. 2d 302, 304 (1993). In contrast, both the Fourth and Federal Circuits have held that such fees are subject to the 2% floor, because they are “commonly” or “customarily” incurred outside of trusts. See Scott v. United States, 328 F. 3d 132, 140 (CA4 2003); Mellon Bank, N. A. v. United States, 265 F. 3d 1275, 1281 (CA Fed. 2001). The Court of Appeals below came to the same conclusion, but as noted announced a more exacting test, allowing “full deduction only for those costs that could not have been incurred by an individual property owner.” 467 F. 3d, at 156 (emphasis added). We granted the Trustee’s petition for certiorari to resolve the conflict, 551 U. S. 1144 (2007), and now affirm. II “We start, as always, with the language of the statute.” Williams v. Taylor, 529 U. S. 420, 431 (2000). Section 67(e) sets forth a general rule: “[T]he adjusted gross income of [a]... trust shall be computed in the same manner as in the case of an individual.” That is, trusts can ordinarily deduct costs subject to the same 2% floor that applies to individuals’ deductions. Section 67(e) provides for an exception to the 2% floor when two conditions are met. First, the relevant cost must be “paid or incurred in connection with the administration of the ... trust.” § 67(e)(1). Second, the cost must be one “which would not have been incurred if the property were not held in such trust.” Ibid. In applying the statute, the Court of Appeals below asked whether the cost at issue could have been incurred by an individual. This approach flies in the face of the statutory language. The provision at issue asks whether the costs “would not have been incurred if the property were not held” in trust, ibid., not, as the Court of Appeals would have it, whether the costs “could not have been incurred” in such a case, 467 F. 3d, at 156. The fact that an individual could not do something is one reason he would not, but not the only possible reason. If Congress had intended the Court of Appeals’ reading, it easily could have replaced “would” in the statute with “could,” and presumably would have. The fact that it did not adopt this readily available and apparent alternative strongly supports rejecting the Court of Appeals’ reading. Moreover, if the Court of Appeals’ reading were correct, it is not clear why Congress would have included in the statute the first clause of § 67(e)(1). If the only costs that are fully deductible are those that could not be incurred outside the trust context — that is, that could only be incurred by trusts — then there would be no reason to place the further condition on full deductibility that the costs be “paid or incurred in connection with the administration of the . . . trust,” § 67(e)(1). We can think of no expense that could be incurred exclusively by a trust but would nevertheless not be “paid or incurred in connection with” its administration. The Trustee argues that the exception in § 67(e)(1) “establishes a straightforward causation test.” Brief for Petitioner 22. The proper inquiry, the Trustee contends, is “whether a particular expense of a particular trust or estate was caused by the fact that the property was held in the trust or estate.” Ibid. Investment advisory fees incurred by a trust, the argument goes, meet this test because these costs are caused by the trustee’s obligation “to obtain advice on investing trust assets in compliance with the Trustees’ particular fiduciary duties.” Ibid. We reject this reading as well. On the Trustee’s view, the statute operates only to distinguish costs that are incurred by virtue of a trustee’s fiduciary duties from those that are not. But all (or nearly all) of a trust’s expenses are incurred because the trustee has a duty to incur them; otherwise, there would be no reason for the trust to incur the expense in the first place. See G. Bogert & G. Bogert, Law of Trusts and Trustees § 801, p. 134 (2d rev. ed. 1981) (“[T]he payment for expenses must be reasonably necessary to facilitate administration of the trust”). As an example of a type of trust-related expense that would be subject to the 2% floor, the Trustee offers “expenses for routine maintenance of real property” held by a trust. Brief for Petitioner 23. But such costs would appear to be fully deductible under the Trustee’s own reading because a trustee is obligated to incur maintenance expenses in light of the fiduciary duty to maintain trust property. See 1 Restatement (Second) of Trusts §176, p. 381 (1957) (“The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property”). Indeed, the Trustee’s formulation of its argument is circular: “Trust investment advice fees are caused by the fact the property is held in trust.” Brief for Petitioner 19. But “trust investment advice fees” are only aptly described as such because the property is held in trust; the statute asks whether such costs would be incurred by an individual if the property were not. Even when there is a clearly analogous category of costs that would be incurred by individuals, the Trustee’s reading would exempt most or all trust costs as fully deductible merely because they derive from a trustee’s fiduciary duty. Adding the modifier “trust” to costs that otherwise would be incurred by an individual surely cannot be enough to escape the 2% floor. What is more, if the Trustee’s position were correct, then only the first clause of § 67(e)(1) — providing that the cost be “incurred in connection with the administration of the . . . trust” — would be necessary. The statute’s second, limiting condition — that the cost also be one “which would not have been incurred if the property were not held in such trust”— would do no work; we see no difference in saying, on the one hand, that costs are “caused by” the fact that the property is held in trust and, on the other, that costs are incurred “in connection with the administration” of the trust. Thus, accepting the Trustee’s approach “would render part of the statute entirely superfluous, something we are loath to do.” Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 166 (2004). The Trustee’s reading is further undermined by our inclination, “[i]n construing provisions ... in which a general statement of policy is qualified by an exception, [to] read the exception narrowly in order to preserve the primary operation of the provision.” Commissioner v. Clark, 489 U. S. 726, 739 (1989). As we have said, § 67(e) sets forth a general rule for purposes of the 2% floor established in § 67(a): “For purposes of this section, the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual.” Under the Trustee’s reading, §67(e)(l)’s exception would swallow the general rule; most (if not all) expenses incurred by a trust would be fully deductible. “Given that Congress has enacted a general rule ..., we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception.” Ibid. More to the point, the statute by its terms does not “establish a straightforward causation test,” Brief for Petitioner 22, but rather invites a hypothetical inquiry into the treatment of the property were it held outside a trust. The statute does not ask whether a cost was incurred because the property is held by a trust; it asks whether a particular cost “would not have been incurred if the property were not held in such trust,” § 67(e)(1). “Far from examining the nature of the cost at issue from the perspective of whether it was caused by the trustee’s duties, the statute instead looks to the counterfactual question of whether individuals would have incurred such costs in the absence of a trust.” Brief for Respondent 9. This brings us to the test adopted by the Fourth and Federal Circuits: Costs incurred by trusts that escape the 2% floor are those that would not “commonly” or “customarily” be incurred by individuals. See Scott, 328 F. 3d, at 140 (“Put simply, trust-related administrative expenses are subject to the 2% floor if they constitute expenses commonly incurred by individual taxpayers”); Mellon Bank, 265 F. 3d, at 1281 (§ 67(e) “treats as fiilly deductible only those trust-related administrative expenses that are unique to the administration of a trust and not customarily incurred outside of trusts”). The Solicitor General also accepts this view as an alternative reading of the statute. See Brief for Respondent 20-21. We agree with this approach. The question whether a trust-related expense is fully deductible turns on a prediction about what would happen if a fact were changed — specifically, if the property were held by an individual rather than by a trust. In the context of making such a prediction, when there is uncertainty about the answer, the word “would” is best read as “express [ing] concepts such as custom, habit, natural disposition, or probability.” Scott, supra, at 139. See Webster’s Third New International Dictionary 2637-2638 (1993); American Heritage Dictionary 2042, 2059 (3d ed. 1996). The Trustee objects that the statutory text “does not ask whether expenses are ‘customarily’ incurred outside of trusts,” Reply Brief for Petitioner 15, but that is the direct import of the language in context. The text requires determining what would happen if a fact were changed; such an exercise necessarily entails a prediction; and predictions are based on what would customarily or commonly occur. Thus, in asking whether a particular type of cost “would not have been incurred” if the property were held by an individual, § 67(e)(1) excepts from the 2% floor only those costs that it would be uncommon (or unusual, or unlikely) for such a hypothetical individual to incur. III Having decided on the proper reading of § 67(e)(1), we come to the application of the statute to the particular question in this case: whether investment advisory fees incurred by a trust escape the 2% floor. It is not uncommon or unusual for individuals to hire an investment adviser. Certainly the Trustee, who has. the burden of establishing its entitlement to the deduction, has not demonstrated that it is. See INDOPCO, Inc. v. Commissioner, 503 U. S. 79, 84 (1992) (noting the “ ‘familiar rule’ that ‘an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer’” (quoting Interstate Transit Lines v. Commissioner, 319 U. S. 590, 593 (1943))); Tax Court Rule 142(a)(1) (stating that the “burden of proof shall be upon the petitioner,” with certain exceptions not relevant here). The Trustee’s argument is that individuals cannot incur trust investment advisory fees, not that individuals do not commonly incur investment advisory fees. Indeed, the essential point of the Trustee’s argument is that he engaged an investment adviser because of his fiduciary duties under Connecticut’s Uniform Prudent Investor Act, Conn. Gen. Stat. § 45a-541a(a) (2007). The Act eponymously requires trustees to follow the “prudent investor rule.” See n. 2, supra. To satisfy this standard, a trustee must “invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements and other circumstances of the trust.” § 45a-541b(a) (emphasis added). The prudent investor standard plainly does not refer to a prudent trustee-, it would not be very helpful to explain that a trustee should act as a prudent trustee would. Rather, the standard looks to what a prudent investor with the same investment objectives handling his own affairs would do — i. e., a prudent individual investor. See Restatement (Third) of Trusts (Prudent Investor Rule) Reporter’s Notes on § 227, p. 58 (1990) (“The prudent investor rule of this Section has its origins in the dictum of Harvard College v. Amory, 9 Pick. (26 Mass.) 446, 461 (1830), stating that trustees must ‘observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested’ ”). See also, e. g., In re Musser’s Estate, 341 Pa. 1, 9-10, 17 A. 2d 411, 415 (1941) (noting the “general rule” that “a trustee must exercise such prudence and diligence in conducting the affairs of the trust as men of average diligence and discretion would employ in their own affairs”). And we have no reason to doubt the Trustee’s claim that a hypothetical prudent investor in his position would have solicited investment advice, just as he did. Having accepted all this, it is quite difficult to say that investment, advisory fees “would not have been incurred” — that is, that it would be unusual or uncommon for such fees to have been incurred — if the property were held by an individual investor with the same objectives as the Trust in handling his own affairs. We appreciate that the inquiry into what is common may not be as easy in other cases, particularly given the absence of regulatory guidance. But once you depart in the name of ease of administration from the language chosen by Congress, there is more than one way to skin the cat: The Trustee raises administrability concerns in support of his causation test, Reply Brief for Petitioner 6, but so does the Government in explaining why it prefers the Court of Appeals’ approach to the one it has successfully advanced before the Tax Court and two Federal Circuits. Congress’s decision to phrase the pertinent inquiry in terms of a prediction about a hypothetical situation inevitably entails some uncertainty, but that is no excuse for judicial amendment of the statute. The Code elsewhere poses similar questions — such as whether expenses are “ordinary,” see §§ 162(a), 212; see also Deputy, Administratrix v. Du Pont, 308 U. S. 488, 495 (1940) (noting that “[ojrdinary has the connotation of normal, usual, or customary”) — and the inquiry is in any event what § 67(e)(1) requires. As the Solicitor General concedes, some trust-related investment advisory fees may be fully deductible “if an investment advisor were to impose a special, additional charge applicable only to its fiduciary accounts.” Brief for Respondent 25. There is nothing in the record, however, to suggest that Warfield charged the Trustee anything extra, or treated the Trust any differently than it would have treated an individual with similar objectives, because of the Trustee’s fiduciary obligations. See App. 24-27. It is conceivable, moreover, that a trust may have an unusual investment objective, or may require a specialized balancing of the interests of various parties, such that a reasonable comparison with individual investors would be improper. In such a case, the incremental cost of expert advice beyond what would normally be required for the ordinary taxpayer would not be subject to the 2% floor. Here, however, the Trust has not asserted that its investment objective or its requisite balancing of competing interests was distinctive. Accordingly, we conclude that the investment advisory fees incurred by the Trust are subject to the 2% floor. The judgment of the Court of Appeals is affirmed. It is so ordered. because this ease is only about trusts, we generally refer to trusts throughout, but the analysis applies equally to estates. Forty-four States and the District of Columbia have adopted versions of the Uniform Prudent Investor Act. See 7B U. L. A. 1-2 (2006) (listing States that have enacted the Uniform Prudent Investor Act). Five of the remaining six States have adopted their own versions of the prudent investor standard. See Del. Code Ann., Tit. 12, §3302 (1995 ed. and 2006 Supp.); Ga. Code Ann. §53-12-287 (1997); La. Rev. Stat. Ann. § 9:2127 (West 2005); Md. Est. & Trusts Code Ann. §15-114 (Lexis 2001); S. D. Codified Laws § 55-5-6 (2004). Kentucky, the only remaining State, applies the prudent investor standard only in certain circumstances. See Ky. Rev. Stat. Ann. § 286.3-277 (Lexis 2007 Cum. Supp.); §§ 386.454(1), 386.502 (Supp. 2007). The Solicitor General embraces this position in this Court, arguing that the Court of Appeals’ approach represents the best reading of the statute and establishes an easily administrable rule. See Brief for Respondent 17-20,22. Indeed, after the Court of Appeals’ decision, the Commissioner adopted that court’s reading of the statute in a proposed regulation. See Section 67 Limitations on Estates or Trusts, 72 Fed. Reg. 41245 (2007) (notice of proposed rulemaking) (a trust-related cost is exempted from the 2% floor only if “an individual could not have incurred that cost in connection with property not held in an estate or trust” (emphasis added)). The Government did not advance this argument before the Court of Appeals. See Brief for Appellee in No. 05-5151-AG (CA2), pp. 3-4, 22-24. In fact, the notice of proposed rulemaking appears to be the first time the Government has ever taken this position, and we are the first Court to which the argument has been made in a brief. See Brief for United States in Mellon Bank, N. A. v. United States, No. 01-5015 (CA Fed.), p. 27 (“[I]f a trust-related administrative expense is also customarily or habitually incurred outside of trusts, then it is subject to the two-percent floor”); Brief for United States in Scott v. United States, No. 02-1464 (CA4), p. 27 (same). In pressing the Court of Appeals’ approach, the Solicitor General argues that “to say that a team would not have won the game if it were not for the quarterback’s outstanding play is to say that the team could not have won without the quarterback.” Brief for Respondent 19. But the Solicitor General simply posits the truth of a proposition — that the team would not have won the game if it were not for the quarterback’s outstanding play — and then states its equivalent. The statute, in contrast, does not posit any proposition. Rather, it asks a question: whether a particular cost would have been incurred if the property were held by an individual instead of a trust. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_amicus	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals. BICHEL OPTICAL LABORATORIES, INC., Plaintiff-Appellant, v. The MARQUETTE NATIONAL BANK OF MINNEAPOLIS, Defendant-Appellee. No. 73-1330. United States Court of Appeals, Eighth Circuit. Submitted Oct. 19, 1973. Decided Nov. 7, 1973. Rehearing Denied Dec. 6, 1973. James B. Lund, Minneapolis, Minn., for plaintiff-appellant. Stephen Winniek, Minneapolis, Minn., for defendant-appellee. Before HEANEY, ROSS and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. This appeal raises the question of whether seizure by defendant-appellee bank of plaintiff-appellant borrower’s funds and collateral in the form of accounts receivable without foreclosure or notice is an act under color of state law, thus giving rise to a claim under 42 U.S.C. § 1983. The trial court found that the alleged seizure by appellee bank did not constitute governmental action. See Bichel Optical Laboratories, Inc. v. Marquette National Bank, 336 F.Supp. 1368, 1372 (D.Minn.1971). We agree. In 1967, appellee bank made several loans to appellant in exchange for promissory notes. The loans were secured by appellant’s checking account with appel-lee bank and by means of a receivables security agreement. On September 20, 1968, 31-day renewal notes were executed in the amount of $4,000 bearing interest at 8%. The notes provided that in the event of appellant’s insolvency, or in the event that appellant failed to keep a margin of security satisfactory to ap-pellee bank, the latter had the right to accelerate payment of such indebtedness and to collect any collateral securing the notes, without giving prior notice or demand to appellant. Seven days after the renewal notes were executed appellee bank exercised its options under the notes which action was triggered by adverse financial information it had received concerning appellant. Appellee bank accelerated payment on the notes and proceeded to collect the collateral by notifying appellant’s debtors to pay appellee bank directly, and by setting off against appellant’s checking account. Appellant subsequently brought this action against- appellee bank claiming that the seizure of funds without foreclosure or notice constituted violations of state and federal antitrust laws, the Robinson-Patman Act, and appellant’s constitutional protection against unlawful search and seizure. Appellant also claimed that the loan was usurious. Appellant moved to amend its complaint based upon alleged state and federal constitutional claims, and upon alleged breach of agreement. The trial court denied leave to add the constitutional claims, but allowed the additional claim of breach o-f agreement. Appellee bank in turn moved for partial summary judgment which was granted on the allegations as to usury and violation of the Robinson-Patman Act. The remainder of the case was tried to a jury. Appel-lee bank received a directed verdict on the alleged antitrust violations and a jury verdict on the remaining claims. It is from the trial court’s denial of appellant’s motion to amend its complaint to include the constitutional claim that appellant appeals. In effect, appellant sought to challenge the constitutionality of the pre-judgment “self-help” remedies as authorized by statute in Minnesota under Article 9 of the Uniform Commercial Code. See Minn.Ann.Stat. §§ 336.9-502(1), 336.9-503 and 336.9-504. Essentially, appellant now contends that since Minnesota has provided the machinery for the alleged seizure by a .private party by means- of a pervasive statutory scheme, the state has significantly involved itself in the pre-judgment “self-help” process. Unlike Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which involved the pre-judgment seizure of goods by a state agent pursuant to a private creditor’s writ of replevin, the procedures challenged herein by appellant involve only private actions arising out of the express written agreements between the parties. See Adams v. Southern California First National Bank, 492 F.2d 324, at 329, 337-338 (CA9, 1973). It is our view that the State of Minnesota by the mere passage of the Article 9 “se'lf-help” remedies has not so significantly involved itself in the procedures followed by appellee bank as to constitute an act under color of state law giving rise to a § 1983 action. Adams v. Southern California First National Bank, supra, 492 F.2d 324 (CA9, 1973); see also Pease v. Havelock National Bank, 351 F.Supp. 118, 120 (D.Neb.1972); accord, Kirksey v. Theilig, 351 F.Supp. 727, 732 (D.Colo.1972); Greene v. First National Exchange Bank of Virginia, 348 F.Supp. 672, 673-675 (W.D.Va.1972). We therefore affirm the decision of the trial court denying appellant’s motion to amend its complaint to include the alleged deprivation of constitutional rights. Affirmed. . Appellant moved to add alleged violations of the constitutions of both the United States and the State of Minnesota. This included allegations based upon the due process clauses of the Fifth and Fourteenth Amendment of the United States Constitution and Article 1, Section 7 of the Minnesota Constitution, and upon the search and seizure clauses of the Fourth Amendment of the United States Constitution and Article 1, Section 10 of the Minnesota Constitution. The trial court held that “[b]oth due process clauses of the Federal Constitution are by their terms restrictions upon the state government, not upon private parties as here. Similarly, the Fourth Amendment to the United States Constitution and Article 1, Sec. 7 of the Constitution of the State of Minnesota are constraints upon the federal and state governments, respectively. The fact that the defendant Bank is a national bank in no way makes it an arm or agent of either government, and there is no allegation, that officials of either government were in any way involved.” 336 F.Supp. at 1372. Appellant now raises for our determination alleged violations of the same constitutional provisions as those raised in its motion to amend its complain);. We find its claim based upon deprivation of constitutional rights by federal action to be wholly without merit, and therefore confine our discussion to appellant’s claim based upon alleged state action. . See 57 Minn.L.Kev. 621 (1973). Question: Was there any amicus participation before the court of appeals? A. no amicus participation on either side B. 1 separate amicus brief was filed C. 2 separate amicus briefs were filed D. 3 separate amicus briefs were filed E. 4 separate amicus briefs were filed F. 5 separate amicus briefs were filed G. 6 separate amicus briefs were filed H. 7 separate amicus briefs were filed I. 8 or more separate amicus briefs were filed J. not ascertained Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES v. McGRORY. No. 2738. Circuit Court of Appeals, First Circuit. Feb. 18, 1933. William H. Hession, of Boston, Mass., Chief Atty., Veterans’ Administration (Henry M. Boss, Jr., U. S. Atty., and Edward F. McElroy, Asst. U. S. Atty., both of Providence, R. I., and Davis G. Arnold and C. L. Dawson, both of Washington, D. C., Attys., Veterans’ Administration, on the brief), for the United States. James B. Littlefield, of Providence, R. I., for appellee. Before BINGHAM, WILSON, and MORTON, Circuit Judges. WILSON, Circuit Judge. This is an appeal from a judgment of the District Court of Rhode Island in an action at law to recover a sum alleged to be due under a war risk insurance policy issued to the plaintiff-appellee. The plaintiff based his claim for compensation on injuries received while in the service and resulting in permanent total disability while his insurance was in force. A jury trial was waived. The District Court found in favor of the plaintiff, and awarded judgment for $8,222.50. The plaintiff entered the service on July 27,1917; was honorably discharged on June 27, 1919; re-enlisted June 28, 1919', and was again honorably discharged July 15, 1920. War risk insurance was granted him on his application on February 5, 1918, providing for the payment of $10,000 in case of his death, or $57.50 monthly in case of permanent and total disability. The plaintiff paid his premiums until October, 1919, but on September 2, 1919, he requested that his insurance policy be discontinued. Testimony was introduced from physicians connected with the Veterans’ Bureau and from men by whom or under whose supervision he had been employed from the time of his discharge from the service until 1930. There seems to be no doubt but that this plaintiff received a leg injury in the barbed wire entanglements during the St. Mihiel drive, and suffered during his period of service from what was then diagnosed as varicose veins, which interfered with his drilling and marching, and also appears to have suffered from either gas or shell shock. At some time during this period he was in the hospital, and no doubt was temporarily totally disabled. However, on June 28,1919) he enlisted again, and, so far as the record shows, was accepted by' the examining physicians and performed such duties as were assigned to him as a soldier until he was discharged in July, 1920. At the close of the oral testimony offered on each side, .the defense filed a motion that judgment be entered for the .government. The District Court thereupon expressed doubt as to the right of the plaintiff to recover, but made no ruling at the time on the government's motion. Instead, the District Court suggested "that the evidence be transcribed and submitted to a certain physician, named by the presiding justice as one in whom he had' great confidence, who, after examining the evidence, should advise the court as to whether the plaintiff was suffering from permanent and total disability during the period in which the policy was in force. To this procedure both parties assented, and that the. presiding justice might consider the advice of the physician. The report of the physician must therefore be treated as the introduction of additional evidence. The District Judge so treated it, and in his decision said: “Basing my findings upon all the evidence in the case as supplemented by this report, I find,” etc. The bill of exceptions approved by the' presiding justice states that “at the concluí sion of the testimony the defendant moved for judgment * * * whereupon the court found for the plaintiff and noted defendant’s exception to the denial of the motion for judgment.” A majority of the court are of the opinion that this statement in the bill of exceptions warrants the presumption that the motion for judgment filed at the close of the oral testimony was renewed by the defendant before judgment, and an exception was duly taken. It then raises, a question of law as to whether there was any evidence on which the judgment can rest. We think not only was there no evidence on which the judgment can rest, but the evidence shows conclusively that the plaintiff’s injuries did not result in permanent total disability during the period the contract of war risk insurance was in force. The War Bisk Insurance Act, § 13 (40 Stat. 555) provides “that the director, subject to the general direction of the Secretary of the Treasury, shall administer, execute, and enforce the provisions of this Act, and for that purpose have full power and authority to make rules and regulations not inconsistent with the provisions of this Act, necessary or appropriate to carry out its purposes, and shall decide all questions arising under the Act, except as otherwise provided in section five.” The Treasury Department issued the following regulation defining what constitutes permanent and total disability as follows: “Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed, in Article III and IV, to be total disability. “.‘Total disability’ shall be deemed to be ‘permanent’ whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.” In construing these policies, it must be borne in mind that there may be permanent partial disability, and also temporary total disability, but neither constitutes permanent total disability and permits a recovery under a war risk insurance policy on that ground. There is really no ambiguity in the phrase permanent total disability. It must, first. be sueli. a disability, while a war risk policy is in force, as is reasonably certain to continue through life, and, secondly, will prevent any continuous employment in any gainful occupation. An unsuccessful effort to continue such employment will not prevent recovery, Ford v. United States (C. C. A.) 44 F.(2d) 754, but a reasonably continuous employment over several years, subject to only such interruptions as may be due to the nature of the employment or illness, such as a normal person might be subject to, or even interruptions due to a partial disability, does not constitute permanent total disability. United States v. Peet (C. C. A.) 59 F.(2d) 728. As one judge, though in a dissenting opinion' — the majority opinion merely holding that the ease should be submitted to a jury — has aptly phrased the definition of this term: “It seems to me axiomatic that, whatever might be the rating to> be given to an insured prospectively, he cannot be said to have been permanently and totally disabled at the time of the lapse of his policy — with which time we are alone concerned — if between that lime and tho time of bringing suit, a number of years later, there were substantial periods of time during which tho insured was able to perform without injury to himself, and did pei’form with reasonable regularity, and for gain, a material part of the world’s labor, be such labor mental or physical, heavy or light. During such periods he wa.s at best but partially disabled, whether his disability be regarded as total for but a part of each day, month, or year, or as embracing some part only of the work ordinarily open to each individual, or both. In each such case the permanency of the total disability, judged as of the date of his discharge* has been completely and conclusively negatived by the showing of substantial periods of time during which it did not exist.” Bartee v. United States (C. C. A.) 60 F.(2d) 247, 251. The record discloses that in July, 1919, and shortly after his second enlistment, he was permitted to return home for a month, and then reported at a camp in Georgia, where he served out his enlistment. During his stay in camp he was hospitalized for treatment of his leg and an operation, following which he had charge of some men in the Georgia camp, until he was discharged from the service on July 15* 1920. It was while he was in the Georgia camp that he ordered his war risk insurance terminated. On August 5* 1920, he entered the employment of the United Electric Railways at Providence, R. I., and his earnings from August 5, 1920, until December 24, 1920, were $479.65, or over $100 per month. During the year 1921 he was employed by the same company and his earnings were $921.95. In 1922 he earned $497.30. This employment ended on October 6, 3922. During the period of this employment, plaintiff was only a spare man and worked as a conductor. On September 27,1923, the plaintiff commenced to work for the Providence Gas Company, and continued in this employment until September 13, 1924. During the year 1923 he earned $363.45, covering the period from September 27, 1923, until January 1, 1924, or about $120 per month. This employment was at the rate of 45 cents an hour for a 54-hour week, or a maximum total of $24.30 per week. The record of this company showed that the plaintiff earned more than $24.30 every week, which indicated considerable overtime. For the period from January 1, 1924, to September 13, 1924, tho plaintiff was paid by the Providence Gas Company $1,037.88, or over $120 per month. He was employed at tho same rate of pay, and worked overtime a few hours practically every week. The plaintiff entered vocational training as a glass worker at tho Frauklin Glass Company, Providence, R. I., on February 16* 1925, and was in this training altogether for one year and nine months, during which time the government paid him $160 a month. He was declared rehabilitated on December 31, 1926. The plaintiff again entered the employment of the Providence Gas Company on September 20, 1926, and continued until January 14, 1930, or continuously for over three years. His rate of pay at the timo of this employment was 45 cents an hour, and this was increased to 50 cents an hour on October 29, 1928. From September, 1926-, until the end of the year, he earned $368.53, and worked overtime in September, October, November, and December. In 1927 he earned $1,214.05* and worked overtime during that year. In the year 1928 he earned $1,-305.24, and worked overtime during that year. In the year 1929 he earned $1,329.75, and worked overtime. His employment terminated, as stated above, on January 14, 1930, and he was paid $54.25 for that part of January. While the plaintiff testified that ho was favored by his employer in some of these employments, and was given comparatively easy .jobs, still Ms earnings show that Ms employment was not sporadic, but was as continuous as a spare man could reasonably ex-peet, or, when employed regularly, his earnings were as much as the average unskilled workman would ordinarily receive. That during the period from his discharge until he ceased work in January, 1930, he was at times temporarily incapaeitated, due to trouble with his legs, and received compensation for total disability under the World War Veterans’ Act 1924 (38 USCA § 421 et seq.) for short periods, and was rated as partially disabled during much of the time and received compensation pro rata is true, but the records of the Veterans’ Bureau from September 21, 1922, to January 16, 1930, disclose that during'that period he was not rated as totally disabled, ex-eept during short intervals from October 14 to November 17, 1922; from September 10, 1924, to February 15, 1925; that during the remainder of the more than 7 years covered by the report, he was rated as partially disabled, from 19 per cent, in 1922 to 75 per cent, just before he ceased working in 1930. During the greater portion of the time he was rated as 25 per cent, partially disabled. His income during much of the nine year period from August, 1920; to January, 1930, except during the periods of total disability, disclosed little, if any, impairment in earning power. The District Court based its decision largely on the report of the doctor to whom the evidence was submitted at the close of the testimony, but this physician’s report, when carefully read, goes no farther than to express an opinion that the plaintiff is now suffering from an interference in the arterial circulation in the legs, instead of the veins, ■i • i i ■» . , j i as his trouble was previously diagnosed: and »i i M a , . t . . . that the cause may be traced to some injury ,, ♦ it Í during the period ox his service, and has been • a lit. i • j. ♦ progressive, so that the subject is now perai j . j n * manently and totally disabled. The physician, however, does not state that at any time prior to 1930 while plaintiff was working, often overtime, and was earning from $1,000 to $1,200 a year, that he was totally disabled or that he was totally disabled at the expiration of his policy of war risk insurance. He merely says a progressive disease began and incapacitated him while in the service, though, to what extent,' during the time his policy was in force, he does not say, but concludes that, at the time o£ ¥> examination m 1932, the plaintiff wcmM “eJ,er be able to work again. That he received the injury during his service, which,, **** ^ J™™' resulted “ nent total disability,^ not sufficient to Permit recovery under his policy of insurwhlch exPlred not later than 0ctoher 5> T9'--9. The following eases, and many others which might be cited, support this eonelusion: United States v. Rice (C. C. A.) 47 F.(2d) 749; United States v. McGill (C. C. A.) 56 F.(2d) 522; United States v. Perry (C. C. A.) 55 F.(2d) 819; United States v. Dougherty (C. C. A.) 54 F.(2d) 721; United States v. Fly (C. C. A.) 58 F.(2d) 217; Nordberg v. United States (D. C.) 51 F.(2d) 271; Nalbantian v. United States (C. C. A.) 54 F.(2d) 63; United States v. Lyle et al. (C. C. A.) 54 F.(2d) 357. We are not unmindful of the suffering that this plaintiff must now undergo from a cause originating while in the service, but it is evident tha't the government has not been unmindful of its duty toward him for the injury he thus incurred. It has paid him continuously for partial disability and at tlmes for total disability. It paid him $160 Per month during a period of a year and 9 whole training for rehabilitation at o£wbicb he was pronounced rehabilltate¿ He °ver $1°? P.® °? a total dlfMlty rat“S, and will ™eelve as W “ he lives. It is not a case ox the government refusing to take care ox a soldier injured m the serv- . m, , . ice. The government is hiding behind no ® technicality. It has meritorious grounds for . . ,. insisting that to permit recovery under a policy terminated at the plamtifrs request 'would be unwarranted under the undisputed i&cts in this case. The judgment of the District Court is reversed, and the ease is remanded to that court, with direction that judgment be entered for the defendant. 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_state	56	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Peter HOLZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 17657. United States Court of Appeals Ninth Circuit. Nov. 1, 1962. David C. Marcus, Los Angeles, Cal., for appellant. Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief, Civil Section, James R. Dooley, Asst. U. S. Atty., and Dzintra I. Janavs, Los An-geles, Cal., for appellee. Before BARNES and HAMLIN, Circuit Judges, and PLUMMER, District Judge. Under the new statute (Public Law 87-301, 75 Stat. 651, 8 U.S.C. § 1105a (a) (3)) actions of this type must be brought against the Immigration and Naturalization Service as Respondent. We have, therefore, changed the title of proceedings in this Oourt from “Peter IIolz, Petitioner v. George Rosenberg, District Director, Immigration and Naturalization, etc., et al., Respondents” to “Peter Holz, Petitioner v. Immigration and Naturalization Service, Respondent”. BARNES, Circuit Judge. This is a petition for judicial review of the Immigration and Naturalization Service’s (hereinafter referred to as “respondent”) denial of an application for stay of deportation made by Peter Holz (hereinafter referred to as “petitioner”) under Section 243(h) of the Immigration and Nationality Act of 1952 (hereinafter referred to as the “Act”), 8 U.S.C. § 1253(h). The petition had originally been filed in the district court, and it was transferred to this court by an order of the district court pursuant to § 5(b) of Public Law 87-301 (75 Stat. 651, 8 U.S.C.A. § 1105a(a)). There is no issue relating to the finality of respondent’s order of deportation, nor is there an issue relating to the validity of the order. Holz v. Del Guercio, 9 Cir., 1958, 259 F.2d 84. Nor is this a habeas corpus proceeding. Thus, the issue here presented is whether respondent abused its discretion in denying petitioner’s application for stay of deportation under § 243(h) of the Act. Does this court have jurisdiction to hear petitioner? This court has held that it has jurisdiction to determine if the Attorney General has given an alien procedural due process if the Attorney General purports to act under § 243(h). Cakmar v. Hoy, 1959, 265 F.2d 59, 62. But it also seems clear that the Attorney General’s decision on an application for stay of deportation under § 243(h) is not an administrative proceeding under § 242(b) of the Act. Ibid. Here the Attorney General acted under § 243(h), but this is not a proceeding under § 242(b). Thus, the question is: Though this court has jurisdiction to determine whether an alien was afforded procedural due process when the Attorney General acts as he did here, does this court have original jurisdiction or merely appellate jurisdiction ? By transferring the petition to this court, the district court apparently was of the opinion that this court had original jurisdiction. There is, however, no indication that this question was brought specifically to the attention of the district court. The pertinent language in § 1105a, as amended by Public Law 87-301 reads: “ (a) The procedure prescribed by, and all the provisions of sections 1031-1042 of Title 5, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, * * ” and: “(c) * * No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceeding, unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order.” This language states that the procedures set forth in Public Law 87-301 apply only to the judicial review of final orders of deportation issued pursuant to § 242(b) of the Act. It might well be argued from the legislative history of Public Law 87-301 (87th Cong., 1st Sess., 1961, U.S.Cong. & Adm. News, pp. 2966-2970), that the purpose of the Law was “to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens” and, therefore, this court should assume original jurisdiction of cases such as that which is presently before us. On the other hand, the legislative history refers to judicial review of orders of deportation; not to the judicial review of the entirely different administrative act contained in § 243(h). Perhaps Congress would be pleased if this court were to assume jurisdiction in the case at bar. But ours is a court of limited jurisdiction. Congress would not be pleased if this court assumed that which had never been granted. We hold, therefore, that we are required to dismiss the petition on the ground that this court is without jurisdiction. Giova v. Rosenberg, 308 F.2d 347 (9th Cir., decided June 15, 1962, rehearing denied, October 23, 1962), and Mai Kai Fong v. Immigration and Naturalization Service, 9 Cir. 1962, 305 F.2d 239. We must await a clear statement from ■ Congress if it desires this court to hear petitions brought solely under § 243(h) of the Act; i. e., to hear petitions such as that here presented under the procedures set forth in Public Law 87-301 when there are no grounds for this court to exercise ancillary jurisdiction. We disagree, in other words, with the holding of the Seventh Circuit in Blagaic v. Flagg, 1962, 304 F.2d 623, and Roumeliotis v. Immigration and Naturalization Service, 1962, 304 F.2d 453, and agree with Zupicich v. Esperdy, S.D.N.Y.1962, 207 F.Supp. 574, and Foti v. Immigration and Naturalization Service, 2 Cir., 308 F.2d 779. But were we to assume this court has jurisdiction, we would reach an equivalent result on the merits. This is because the facts as set forth by petitioner show that respondent has ordered him to be deported to (West) Germany and, because he is a native of Rumania, he fears the German government might, in turn, send him to Rumania. And, contends petitioner, if he is sent to Rumania he will be subjected to physical persecution because of his personal anti-Communistic history. If he were sent to Rumania, petitioner probably would be subjected to physical persecution. But there is no evidence that Germany would send him to Rumania. Petitioner does not fear physical persecution in Germany. Indeed, he had learned his trade there, has been issued a certificate of German citizenship, and was issued a German passport by the German Consulate at Los Angeles on December 4, 1958. We conclude that the record shows that petitioner was given a fair— and complete — hearing. As was stated by this court in Kalatjis v. Rosenberg, 1962, 305 F.2d 249: “The discretionary powers established by the legislative branch of our government have been duly and properly exercised by those entrusted by law to so exercise them. No power rests in us to interfere, nor can we substitute our discretion for that of the Attorney General, or his lawful delegate.” (atp. 253.) But for the reason hereinbefore stated, the petition is dismissed. . This court there affirmed respondent’s final order of deportation. To understand fully the facts of this case, the earlier decision of this court should he read; the facts there set forth are not here reiterated. . Petitioner’s speculation on the future course of conduct of foreign governments —while not to the same degree of acidity —has a flavor similar to the petitioner’s fears in Cakmar v. Hoy, 9 Cir., 265 F.2d 59. . The certificate is dated February 8, 1954. However, petitioner contends that he is no longer a German citizen, alleging that his certificate of German citizenship expired on February 9, 1959. It must be noted, however, that counsel for petitioner stated at the bearing that he was going to obtain information from the German Embassy in Washington showing that petitioner was no longer considered a German citizen. Respondent’s Special Inquiry Officer gave petitioner’s counsel sixty days to obtain the information; no such information was ever submitted to respondent. 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_respond1_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 respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. MORAND BROS. BEVERAGE CO. v. NATIONAL LABOR RELATIONS BOARD. No. 10335. United States Court of Appeals, Seventh Circuit. July 23, 1951. Samuel L. Golan, Chester F. McNamara, Leonard W. Golan, all of Chicago, Ill., Golan & Golan, Chicago, Ill., of counsel, for petitioners. David P. Findling, A. Norman Somers and Bernard Dunau, N. L. R. B., all of Washington, D. C., George J. Bott, General Counsel, Benjamin A. Theeman, Attys., National Labor Relations Board, Washington, D, C., for respondent. George O. Bahrs, San Francisco, Cal., Arthur C. Rooney, Chicago, Ill., Eli E. Dorsey, Seattle, Wash., Robert P. Patterson, New York City, Marshall A. Pipin, Chicago, Ill., Seago, Pipin, Bradley & Vetter, Chicago, Ill., of counsel, amicus curiae. Gerard D. Reilly, Washington, D. C., Reilly, Rhetts & Ruckelshaus, Washington, D. C., Doesburg, Goddess & Bowes, Chicago, Ill., of counsel, for Union Employers Section Printing Industry of America, Inc., amicus curiae. William R. Bowes, S. G. Lippman, Chicago, Ill., Herbert Thatcher, Albert Woll, Washington, D. C., Woll, Glenn & Thatcher, Washington, D. C., Robert Karmel, Chicago, Ill., of counsel, amici curiae. Before KERNER, LINDLEY, and SWAIM, Circuit Judges. LINDLEY, Circuit Judge. Petitioners, wholesale dealers and distributors of alcoholic beverages, seek to set aside an order of the National Labor Relations Board requiring them to cease and desist from discouraging membership in Liquor and Wine Salesmen’s Union, Local 62, “by discharging (their employees) or otherwise discriminating in regard to their tenure of employment” or from interfering with, restraining or coercing them in any other manner in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act, 29 U.S.C.A. 157. The order also directs petitioners to make back pay awards to their employees. All of petitioners are members of either the Illinois Wholesale Liquor Dealers Association or the Chicago Wholesale Liquor Dealers Association. Since 1942, they have recognized Local 62 as the exclusive collective bargaining representative of all their salem en-employees and have, from time to time, entered into collective bargaining agreements with that union governing the salesmen’s terms and conditions of employment. Thus, contract negotiations were conducted annually between representatives of the employer associations, acting on behalf of petitioners, and representatives of the Union, acting for the salesmen. Once a proposed contract was agreed upon, it was submitted for majority approval to the membership of the Associations and the Union and, their respective approvals having been obtained, separate and identical contracts were executed by the Union and each of petitioners. Early in January, 1949, negotiations for a new contract were begun, and, by January 22, an apparent impasse had been reached on the question of an increase in commissions for the salesmen. Since the 1948 contract was to expire at the end of January, 1949, the Associations and the Union executed an interim agreement extending the life of the expiring contract to March 15, 1949, “to allow the parties additional time within which to adjust outstanding differences growing out of the negotiations for a successor contract,” but the stalemate over commissions continued throughout the extension period. On March 16, the Union sent directly to each petitioner a copy of a document entitled “second supplemental agreement,” together with a letter stating that it was “imperative” that the agreement, which included the increase in commissions demanded by the Union, be executed without further delay. The Illinois Association responded in a letter expressing surprise that the Union had “mailed out the contracts without having previously reached an agreement” with the Association’s Labor Committee and stating that its members “must decline to execute these agreements.” To this letter the Union did not reply, and the then existing status persisted until late in March, 1949, when the Union, to which all of petitioners’ salesmen belonged, unanimously approved a general strike authorization. Rumors of the proposed strike led petitioners, at a meeting held about April 1, to prepare a letter in blank, a copy of which was to be sent to each of their salesmen in the event a strike should be put in force against any one or more of petitioners. The letter read as follows: “Dear * * . Since the existence of the salesmen’s union, all contracts have been negotiated and signed on an industry-wide basis. During the negotiations last year and this year, we exhibited financial statements prepared by certified public accountants to the Union officials which demonstrated our inability to give any increase in the commission rate. The Union officials agreed that we were unable to give an increase last year and, accordingly, the contract was signed without changing the commission rate. Business conditions certainly cannot be any better in 1949 than in 1948, and it would be sheer folly and economic disaster on our part to grant the salesmen any increase in their present high commission rate. During our negotiations this year, the Union officials admitted that if the commission rate was increased, a large number of wholesalers would have to go out of business, nevertheless, the salesmen’s union has called their men off the job and are now picketing * . A strike against one house or small group of houses is not just a strike against one individual wholesaler, but it is a strike against our house and all the other wholesalers in Chicago. If we permitted the Union to do this, it would merely be a question of time until each house would be compelled to sign this unfair contract or to close its business doors; we consider this action by the Union to be in the same category as a strike called against all of the wholesalers. The Union officials have been advised and are fully aware of our position and since the salesmen of your Union walked out on one of these houses it is our position that you have decided to strike every wholesaler who has been a party to the industry-wide negotiations. Accordingly, we ask you to turn over to us immediately any records, papers, credentials or monies that you may have belonging to us, and come and see us immediately so that we may settle any financial differences that exist to date between us. Very truly yours,” Signed copies of this letter were prepared on the stationery of the respective individual petitioners and delivered to the Illinois Association, with the understanding that the names of the various salesmen and the name of the struck petitioner would be filled in and the letters mailed, in the event of a strike. The Union was informed of the existence of these letters during the second of two unsuccessful meetings, held on April 2 and 4, between representatives of the Associations and the Union. On April 5, the Union wrote each petitioner, except the Old Rose Distributing Co., a letter stating that it had “no intention of calling a stoppage of work at your establishment” and that “it would be erroneous to interpret * * action (taken against any other establishment) as a threat of a strike in your establishment.” Late the next day, the Union struck against Old Rose, and picketing began early on the morning of April 7. On that morning the president of Old Rose, Frank, telephoned O’Neill, president of the Union, asking what was to be done about the strike, to which O’Neill replied that he was ready “to sit down with you * * * and discuss a contract right now.” This recorded conversation was played back to a full meeting of the Associations that afternoon, at which the Illinois Association was authorized to fill in and send out the letters-in-blank theretofore prepared by the petitioners. Copies were mailed to each salesman of each petitioner, including Old Rose. On April 8, many of petitioners’ salesmen, having received these letters, did not report for work; some of those who did report were told they were “fired” and sent home ;■ others were requested to work that day and then sent home. In any event, none of petitioners’ liquor salesmen was employed as such after that date. Many were paid the commissions earned up to April 7 (their commissions were customarily paid on a quarterly basis) and some were requested by petitioners to turn in all “monies and property belonging to us which are now in your possession.” By April 11, picket lines had been extended to the establishments of several of petitioners in addition to Old Rose, the pickets carrying placards which read, “Locked out and discharged.” However, on or about May 1, the terms 'of a new contract having been agreed upon between the Union and the Associations, the strike ended and all salesmen returned to work. On May 4, the Board’s General Counsel, acting upon a charge and supplemental charge filed by the Union prior to the settlement of the dispute, issued against petitioners herein an unfair labor practices complaint charging them with the discriminatory discharge of all their salesmen-employees. This complaint was heard at Chicago on June 14, 15 and 17, 1949. The Trial Examiner found that “the employees of Old Rose were discharged on or about April 8 and the employees of the other Respondents were locked out because of the action of the local in striking Old Rose,” that such action constituted "discrimination on the part of each Respondent against its employees,” that “no legal justification has been shown for the discriminatory treatment of the employees involved,” and that petitioners’ action violated Sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(1, 3). He recommended that petitioners be ordered to cease and desist from discouraging their employees’ union membership “by discharging or locking them out or otherwise discriminating in regard to their tenure of employment” and that they “make whole” each of their employees via a back pay award. The Board, in its decision, after reciting that it “hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications: * * * We find that the Respondents discharged their salesmen on or about April 8, 1949 * * went on to state: “We find, therefore, in agreement with the Trial Examiner, and in accordance with the position of the General Counsel, that all the Respondents * * * discharged their salesmen, in violation of Section 8(a)(1) and (3) of the Act.” (Emphasis Supplied.) The Board’s order closely followed the, recommendations of the Trial Examiner with the exception that in paragraph 1(a) thereof, the words “or locking them out” were stricken from the phrase “by discharging or locking them out or otherwise discriminating in regard to their tenure of employment,” as it appeared in the Trial Examiner’s recommendations. Petitioners urge that the Board erred in finding they had discharged their salesmen and had engaged in unfair labor practices in violation of the Act, alleging that such findings are not supported by substantial evidence on the record considered as a whole. They also contend that the Union was itself guilty of violations of Sections 8(b)(1)(B) and 8(b)(3) and, hence, not entitled to the Act’s protection, and that the Board should have so found. Finally, they assert that, under the circumstances obtaining in this case, the inclusion in the Board’s order of a back pay award was erroneous, in that such an award tends to defeat rather than effectuate the policies of the Act. Petitioners’ argument that the Union is not, under the facts of this case, entitled to the protection of the Act is premised on its postulate that the Union had violated Sections 8(b)(3) and 8(b)(1)(B) of the Act, which provide that it shall be an unfair labor practice for a labor organization or its agents to refuse to bargain collectively with an employer or to restrain or coerce an employer in the selection of his representative for the purposes of collective bargaining, by mailing to each of the petitioners individually a copy of the Union’s proposed “second supplemental agreement,” together with a letter stating that it was imperative that the agreement be executed, and by the strike at Old Roso, followed by a Union offer to discuss a contract with its president. These acts, petitioners say, constituted a refusal to bargain collectively with an employer, i. e., the employer associations of which petitioners were members, as well as the coercion of an employer, i. e., each petitioner in its individual capacity as an employer, and, especially, Old Rose, in the selection of a bargaining representative. The Board, however, although holding that it was the duty of the Union in the first instance to bargain with the Associations, held that the association-wide unit was not the only appropriate unit for collective bargaining purposes and that, once an impasse had been reached in negotiations between the Union and the Associations, the Union had a right to institute separate negotiations with single employers, With respect to the Union’s submission of its proposed contract to the individual petitioners, after negotiations with the Associations’ Labor Committees had been stalemated, we believe that, in view of the fact that past contracts, although negotiated by the Associations, had been signed by petitioners individually and the fact that each petitioner was free at any time to withdraw from the association to which it belonged and bargain on its own behalf, see Section 8(b) (4) (A) of the Act, this cannot be said to have been an unfair labor practice. Certainly, the fact that identical contracts were sent to the entire membership of the Associations, though perhaps indicative of a Union belief that the Associations’ members might be less adamant than their Labor Committees had been, is hardly consistent with a refusal, on the part of the Union, to continue bargaining on an association-wide basis. Moreover, the Supreme Court’s condonation, in National Labor Relations Board v. Crompton Mills, 337 U.S. 217, 224-225, 69 S.Ct. 960, 93 L.Ed. 1320, of certain Board decisions to the effect that an employer’s unilateral grant of a wage increase previously offered to and rejected by the union is not an unfair labor practice would seem to indicate that, conversely, the Union’s submission, to the individual members of the Associations, of a proposal which had been submitted to and rej ected by the Associations would not be violative of the Act. And, finally, to construe such action as a refusal to bargain with the Associations would be to ignore the fact that the Union did continue to meet with Associations’ representatives, at least two such meetings occurring between the date of the mailing of the proposed contracts and the strike against Old Rose. The strike itself, if undertaken for the purpose of forcing Old Rose to select a different bargaining representative, would have been clearly violative of Section 8(b) (1)(B) of the Act. Both the Trial Examiner and the Board found that it was an economic strike, the Trial Examiner stating that the Union’s motive was to force Old Rose to sign the so-called second supplemental agreement and the Board finding that “the Old Rose Strike was called, not because of any objections by the Local to dealing with the negotiators for the Associations, but solely because of the inability of the Local to obtain a satisfactory contract through joint bargaining.” That petitioners themselves so regarded the strike is evident from the following statement, which appears in the form letters mailed to the salesmen on the day following the strike: “A strike against one house or small group of houses is not just a strike against one individual wholesaler, but it is a strike against our house and all the other wholesalers in Chicago.” We think the finding that the strike against Old Rose was an economic strike is supported by the evidence, when we consider the record as a whole. Therefore, it was not unlawful but rather a “concerted activity” within the meaning and protection of the Act. International Union of Automobile Workers v. O’Brien, 339 U.S. 454, 456-457, 70 S.Ct. 781, 94 L.Ed. 978. Nor does the fact that the Union’s president offered to “discuss a contract” with Old Rose’s president require a different conclusion. It must be remembered that this statement was made in the course of a telephone conversation inaugurated 'by the president of Old Rose and in response to his question “Well, then, what am I supposed to do, Joe, I mean talking frankly, if they (the other members of the Associations) don’t (lock out their salesmen) ?” It seems to us that, under these circumstances, the statement cannot be said to have been threatening or coercive or indicative of any unwillingness on the part of the Union to bargain further with the Associations, whether as the representative of Old Rose individually or as the representative of all their members collectively. Consequently, although we do not indorse the Board’s reasoning to the effect that, once negotiations have been stalemated, a union may utterly disregard the employer unit with which it has theretofore bargained and proceed to fashion a new unit for bargaining purposes, we do approve its conclusion that the Union here did not violate Sections 8(b)(1)(B) or 8(b)(3) of the Act. Concluding, then, that the Union, unable to agree with the Associations upon a satisfactory contract, had a right to strike against Old Rose, or, for that matter, any or all of the Associations’ members, it becomes important to determine what retaliatory measures were available to petitioners. Old Rose, of course, had a clear right to replace its striking employees. National Labor Relations Board v. Mackay Co., 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381. The other petitioners, we believe, could quite properly and realistically view the strike, as they did, as a strike which, though tactically against but one petitioner, was, in the strategic sense, a strike against the entire membership of their Associations, aimed at compelling all of them ultimately to accept the contract terms demanded by the Union. It follows that they had a right to counter the strike’s effectiveness by laying off, suspending or locking out their salesmen, who were members of the striking Union and as to whom there was not then in effect any collective bargaining agreement. We so hold, not merely on the basis of the implied recognition, in the 1947 Amendment to the Act, Section 8(d)(4), of the existence of such a right, but because the lockout should be recognized for what it actually is, i. e., the employer’s means of exerting economic pressure on the union, a corollary of the union’s right to strike. Consequently, once petitioners had exhausted the possibilities of good faith collective bargaining with the Union through their Associations, any or all of them were free to exercise their right to lock out their salesmen without waiting for a strike, just as the Union was free to call, a strike against any or all of them. In the instant case, however, the Board found that petitioners had not merely laid off or locked out but had discharged their employees. Although petitioners strenuously assert that this finding lacks substantial evidentiary support, they contend, in the alternative, that they had a right to discharge their employees when the Union struck Old Rose. With the latter contention we cannot agree; although it would seem that petitioners should be accorded the right to counter such a strike with a lockout, i. e., that they have a right to meet economic pressure exerted by the Union with economic pressure exerted on the Union, it is clearly settled that an employer’s discharge of his employees because of their union affiliations or activities, strike activity included, is an unfair labor practice, violative of Section 8(a)(3) of the Act. National Labor Relations Board v. Jones & Laughlin, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893; Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 183, 61 S.Ct. 845, 85 L.Ed. 1271; International Union of Automobile Workers v. O’Brien, 339 U.S. 454, 456-457, 70 S.Ct. 781, 94 L.Ed. 978. Consequently, it becomes crucially necessary to determine whether the finding that petitioners discharged their employees is supported by substantial evidence on the record considered as a whole. The pivotal circumstance in the determination of whether petitioners locked out, laid off, suspended or discharged their employees is the letter of April 7, mailed to the employees by the Illinois Association on petitioners’ behalf. Although counsel for the Board have repeatedly referred to it as a discharge letter, the letter itself is, at best, ambiguous, and its real meaning has been a matter of serious controversy between petitioners and the Union. A number of salesmen testified that they interpreted the letter as a notice of discharge and, consequently, did not report for work after receiving it; others who, not yet having received the letter, reported for work on April 8 testified that they were told they were “fired.” On the other hand, supporting petitioners’ contention that the letters were notices of a layoff rather than a discharge are the significant facts that none of the salesmen was replaced and all were subsequently reinstated, facts which are hardly consistent with the view that the letters accomplished a complete severance of the employer-employee relation between the various petitioners and their respective salesmen. The Trial Examiner, who heard all the testimony, found, as trier of the facts, that, whereas the employees of Old Rose were “discharged,” the employees of the other petitioners were “locked out.” He made no finding that the lockout was intended to sever permanently their employment by petitioners; nor did he indicate that he was using the terms “discharge” and “locked out” interchangeably or as synonyms. The Board, however, apparently construed his finding that petitioners’ employees had been locked out as equivalent to a finding that they had been permanently discharged, for it stated : “We find * * , in agreement with the Trial Examiner, * * that all the Respondents on or about April 8, 1949, discharged their salesmen * * (Emphasis supplied.) Thus, on the crucial question whether, as the Trial Examiner found, petitioners’ employees were merely locked out (in which case petitioners, other than Old Rose, would not, we think, have been guilty of an unfair labor practice) or whether they were discharged (in which case the contrary result would obtain), the record is not at all clear. It is true that the Board’s brief and argument would indicate that the Board did mean to find that there had been a discharge, as distinguished from a lockout, but, even so, there is, in the record itself, nothing to indicate why the Board concluded, if it did so conclude, that the Examiner’s finding that' petitioners’ salesmen had been locked out was equivalent to a finding that they had been absolutely discharged or on what evidence it relied in reversing, if it did reverse, the Examiner’s express finding on this point and, thus, nothing on which this court can base a determination of the propriety of the Board’s action or the sub-stantiality of the evidence on which it was based. Consequently, we conclude that the case should be remanded to the-Board, with directions that it make a clear and explicit finding on the question whether the severance of the employer-employee relation between the various petitioners (other than Old Rose) and their respective salesmen was intended to be temporary or permanent and, if intended to be temporary in character, in view of the Board’s further consideration, whether it was made for the purpose of “interfering or coercing employees in the rights guaranteed to them by Section 7” or as a legitimate exercise of petitioners’ economic remedies; and, if permanent, whether, in the light of the principles announced in this opinion, a back pay award would tend to effectuate the policies of the Act. With respect to the Old Rose Distributing Co., the Board’s request for enforcement of its order must be granted; insofar as all other petitioners are concerned, the cause is remanded to the Board for further proceedings in conformity with the decision of this court. . The Trial Examiner’s finding was that Old Rose’s employees had been discharged and tbe employees of the other petitioners loched out. . If Old Rose’s president had been told that the Union would not discuss a settlement with him but would meet only with the Associations, it might well be contended that the .Union had violated Section 8(b) (3) by refusing “to bargain collectively with an employer” who could not, under the terms of the Act, Section 8(b) (4) (A), be forced to designate an employer association as his bargaining representative and who, having joined such an association, was free to withdraw from it at any time. . It is in this aspect of the case that the amici curiae, who are, for the most part, employer associations confronted with the common problems of multiemployer bargaining, have expressed the greatest interest. . We are not unaware that the Board has taken a contrary position in the Davis Furniture Co. case, 94 NLRB No. 52, where it held that a strike against a single employer of a multiemployer unit did not justify the lockout of their employees by Association employers whose stores were not struck. . The Trial Examiner apparently felt that Old Rose could not be said to have merely laid off or locked out its salesmen, who were already out on strike when the letters addressed to them were placed in the mail. Although petitioners bave stated that those letters were mailed through a clerical error, it seems to us that the distinction drawn by the Trial Examiner cannot be said to lack substantial support in the evidence. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. 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. 1071 (1953); Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 372-374, 67 S.Ct. 840, 91 L.Ed. 348 (1946). . The expression was coined by Justice Cardozo in New York v. Maclay, 288 U.S. 290, 294, 53 S.Ct. 323, 77 L.Ed. 754 (1933). See also United States v. Scovil, 348 U.S. 218, 220, 75 S.Ct. 244, 99 L.Ed. 271 (1955); United States v. Gilbert Associates, Inc., 345 U.S. 361, 366, 73 S.Ct. 701, 97 L.Ed. 1071 (1953); United States v. Waddill, Holland & Flinn, Inc., 323 U. S. 353, 359, 65 S.Ct. 304, 89 L.Ed. 294 (1945). . Nor are we persuaded by appellants’ claim that “to impose an uncontemplated governmental priority in this case would be, ironically, to frustrate and nullify the legitimate and salutary purposes of the Small Business Act.” A similar argument was 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_erron	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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". FINKELSTEIN v. TANZER et al. No. 267. Circuit Court of Appeals, Second Circuit. May 5, 1941. Feldman & Barrett, of New York City (Maxwell Barrett, of New York City, of counsel), for appellants. Benjamin Siegel, of New York City (Benjamin Brownstein, of New York City, on the brief), for appellee. Before L. HAND, SWAN, and CHASE, Circuit Judges. PER CURIAM. This is an appeal from an order in bankruptcy in the usual “turn ‘ over” proceeding. The respondents were the three officers and directors of the bankrupt company and its only shareholders; they had full charge of its affairs. The case against them was made from the corporate books and for its validity presupposed that between January 1, 1939, and October 28th, 1939, the bankrupt had not sold below cost; if this was true, the respondents had not accounted for more than $10,000 of mcr-cliandise. For that reason sales below cost were the only issue litigated; and the respondents now argue, as they did in the District Court and before the referee, that they proved that their sales had been enough below cost to account for the deficiency. The trustee conceded that he could not from the books prove that issue, because they did not show the yardage which had gone into the garments made and sold. For that reason he relied (1) upon the presumption of § 21 (Z), 11 U.S.C.A. § 44(1) of the Bankruptcy Act; (2) an admission of Nathan Tanzer, the president of the bankrupt upon his examination under § 21, sub. a, that he had never sold below cost; (3) a document obtained by the trustee’s accountant from Tanzer of the bankrupt’s operations which showed that it had sold at a profit of about 20%. The only one of the respondents to take the stand was Nathan Tanzer who swore that he had sold at a loss, and who called in confirmation three supposedly disinterested merchants in the same goods — men’s and boys’ clothing — to swear to the yardage necessary to make up the number of garments sold. Their estimates were not in accord with each other and did not satisfy the referee. A fourth merchant called by the trustee was discredited as he told a different story from what he had told to the trustee in preparation for trial. The referee in a careful report found that the bankrupt had not sold below cost and charged the respondents with the deficiency. It would be absurd to say that on any theory the respondents have shown that the referee’s findings were “clearly erroneous”; indeed they are clearly right if the respondents had the burden of proof. The case is of the common sort; bankrupts making away with their assets on the verge of bankruptcy; we should hardly have thought that it deserved an opinion except for the fact that § 21, sub. I, is involved. That section declares that when in a proceeding like this the bankrupt’s books do not disclose the “cost to him of * * * property sold by him during any period under consideration, it shall be presumed, until the contrary shall appear, that such property was sold at a price not less than the cost thereof to him.” First, we hold that the word, “bankrupt,” as here used, includes individuals who, like the respondents, have complete control of a corporate bankrupt’s business. Second, we hold that the phrase “presumed until the contrary shall appear” is more than the usual presumption whose office is over as soon as the other party has put in substantial evidence; that it imposed upon the bankrupt the burden of proving that its sales were below cost. Even so, the respondents deny that it imposed that burden here because they say that their books contained the cost of all the raw materials which went into the garments which they sold, and all amounts paid for labor. We think that this was not enough; when the section speaks of the books as not disclosing “the cost to him of such property sold by him,” it means that from them it shall be possible to learn the cost of the property actually sold. The bankrupt at bar did not sell the materials which it bought or the labor it paid for; it sold garments made out of those materials by that labor. The section means that the books must contain enough to show what the garments themselves cost and it was necessary for that that they should show how much material and how much labor went into each garment. There is indeed no penalty for not keeping such books, but if a bankrupt fails to keep them he must prove that he sold, below cost and how much below cost. Since the respondents denied possession at any time of the property in question, they do not have the benefit of the doctrine of Danish v. Sofranski, 2 Cir., 93 F.2d 424. Order affirmed. Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_othappth	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". PACIFICORP, d/b/a Pacific Power & Light Company, Petitioner, v. Lee THOMAS, Administrator, EPA, et al., Respondents. Nos. 88-7184, 88-7231. United States Court of Appeals, Ninth Circuit. Submitted Sept. 6, 1988. Decided Sept. 8, 1988. Before BROWNING, WIGGINS, and LEAVY, Circuit Judges. ORDER Respondents’ motion to dismiss is granted. An EPA notice of violation is not reviewable because it is not a final agency action. See 42 U.S.C. § 7607(b)(1983); Union Electric Co. v. Environmental Protection Agency, 593 F.2d 299, 304-06 (8th Cir.1979); West Penn Power Co. v. Train, 522 F.2d 302, 310-11 (3d Cir.1975); see also Air California v. United States Department of Transportation, 654 F.2d 616, 620-21 (9th Cir.1981) (FAA letter warning of possible civil penalties not reviewable as non-final). Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_issuearea	J	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. YIATCHOS v. YIATCHOS, EXECUTRIX, et al. No. 48. Argued January 7, 1964. Decided March 9, 1964. Ernest R. Whitmore, Jr. argued the cause for petitioner. With him on the brief was Richard G. Jeffers. Charles W. Cone argued the cause for respondents. With him on the brief was William B. Holst. Solicitor General Cox, Assistant Attorney General Douglas, Sherman L. Cohn and David L. Rose filed a brief for the United States, as amicus curiae, urging reversal. Mr. Justice White delivered the opinion of the Court. Two Terms ago in Free v. Bland, 369 U. S. 663, where federal savings bonds purchased with community funds were registered in a co-ownership form and the registered co-owners were husband and wife, the survivor was held entitled to the proceeds of the bonds without liability to account in any amount to the beneficiaries of the deceased co-owner, despite conflicting state law purporting to forbid a married couple to make survivorship arrangements with respect to community property and requiring süch property to pass as part of the estate of the deceased in accordance with his will or the state intestacy laws. The success of the management of the national debt was deemed to depend upon the successful sale of the savings bonds, one of the inducements to purchasers being sur-vivorship provisions which afforded “a convenient method of avoiding complicated probate proceedings.” 369 U. S., at 669. State law interfered with a legitimate exercise of federal power and was required to give way under the Supremacy Clause of the Constitution. The Court nevertheless recognized that the federal law was not to be used as a shield for fraud or to prevent relief “where the circumstances manifest fraud or a breach of trust tantamount thereto on the part of a husband while acting in his capacity as manager of the general community property.” 369 U. S., at 670. The scope and application of the exception to the regulatory imperative — “the doctrine of fraud applicable under federal law in such a case,” 369 U. S., at 670-671 — were left to decision in other cases. This is one of those cases. Petitioner is the brother of Angel Yiatchos who died in 1958 and who in 1950-1951 purchased with community funds belonging to himself and his wife United States Savings Bonds in the face amount of $15,075. The deceased was the registered owner of the bonds and they were made payable on his death to his brother, the petitioner. The deceased left a will made in 1954, naming his wife as executrix and bequeathing all cash and bonds owned by him at the time of his death to his brother, four sisters and a nephew. Petitioner brought suit in the appropriate court in the State of Washington to establish his ownership of the bonds, relying upon the federal regulations providing for registration of the savings bonds in the beneficiary form and providing that in the case of the death of the registered owner “the beneficiary will be recognized as the sole and absolute owner, and payment or reissue will be made as though the bond were registered in his name alone.” 31 CFR § 315.66. The trial court, on stipulated facts, sustained the claims of the wife and the other beneficiaries under the will who insisted that since the bonds were purchased with community funds and were community property at the death of the deceased they must be divided into two equal parts, one-half to go to the wife and the other half to be distributed in accordance with the will. The Supreme Court of Washington affirmed, holding that the deceased’s “purchase with community funds of bonds payable to him alone or, after his death, payable exclusively to his brother was in fraud of the rights of the respondent wife” and “a void endeavor to divest the wife of any interest in her own property.” The deceased having been under a fiduciary duty to manage the community funds for the benefit of the community, “[a] breach of this duty [was] a constructive fraud.” Petitioner’s claim to any part of the bonds as beneficiary named therein was rejected since “[respondent widow had a vested one-half interest in the bond proceeds” and since “[t]he descent of decedent’s interest is controlled by RCW 11.04.050 and, therefore, must be distributed according to the terms of the will.” In re Yiatchos’ Estate, 60 Wash. 2d 179, 182, 373 P. 2d 125, 127. We granted certiorari to consider an asserted conflict with Free v. Bland, supra, which was decided while this case was on appeal in the Washington Supreme Court and which that court considered in rendering its own judgment. Under the federal regulations petitioner is entitled to the bonds unless his deceased brother committed fraud or breach of trust tantamount to fraud. Since the construction and application of a federal regulation having the force of law, California Comm’n v. United States, 355 U. S. 534, 542-545; Standard Oil Co. v. Johnson, 316 U. S. 481, 484, are involved, whether or not there is fraud which will bar the named beneficiary in a particular case must be determined as a matter of federal law, Free v. Bland, supra; Clearfield Trust Co. v. United States, 318 U. S. 363. But in applying the federal standard we shall be guided by state law insofar as the property interests of the widow created by state law are concerned. It would seem obvious that the bonds may not be used as a device to deprive the widow of property rights which she enjoys under Washington law and which would not be transferable by her husband but for the survivorship provisions of the federal bonds. Proceeding on these premises, we note that under Washington law spouses may agree to change the status of community property either by an agreement to become effective on the death of either spouse, Rev. Code Wash. § 26.16.120; In re Yiatchos’ Estate, 60 Wash. 2d 179, 182, 373 P. 2d 125, 127, or by gift during lifetime; Hanley v. Most, 9 Wash. 2d 429, 458, 115 P. 2d 933, 944. Thus the widow in this case could have consented to a gift of community property to her husband’s brother or to the inclusion of the bonds in that portion of the estate which belonged to her husband and which he could dispose of at the time of his death. If she gave such consent, or if she ratified the purchase and registration of the bonds, the conduct of the husband was not, for federal purposes, fraud or breach of trust sufficient to avoid the command of the regulations, and petitioner would be entitled to all of the bonds. So far petitioner apparently agrees, but he denies the need for further inquiry, claiming all of the bonds because the record is silent about the knowledge or consent of the wife, she having made no claim of fraud and produced no facts negativing her consent or knowledge. But we think the course suggested by the United States in its amicus curiae brief is preferable. The factual record was made by the stipulation of the parties prior to decision of Free v. Bland, supra. Before precluding the widow because of her own conduct, she should have an opportunity upon remand to prove the actual facts concerning her knowledge or participation in the purchase and registration of the bonds. Petitioner, however, also objects to a remand because further inquiry into consent or acquiescence rests upon the erroneous assumption that the wife could object to the husband’s transfer of the bonds after his death. Since the present value of the bonds, or even their face value, is less than one-half the community property, the deceased, says petitioner, was not attempting to give away property belonging to his wife but was only making use of a simple device provided by federal law to dispose of what he could give by will under the Washington law. The validity of this contention turns on a question of state law about which we are not entirely clear and which may be resolved upon remand. According to the court below, the widow had a “vested one-half interest” in the bonds, which may mean that under Washington law the wife before and after death has a half interest in each item of the community estate, including the particular bonds involved in this case, and cannot be forced to take cash or something else of equal value upon a division of the community property between herself and those entitled to take her husband’s half. Under such circumstances, since we cannot say that this property right, if it exists, is insubstantial, to allow all of the bonds to pass to the designated beneficiary would effect an involuntary and impermissible conversion of the widow’s assets. On the other hand, Rev. Code Wash. § 26.16.030 provides that “The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof.” If under Washington law, the widow, after her husband’s death, has no interest in specific assets owned by the community and her half of the community estate may be satisfied from property or money other than the bonds, petitioner is entitled to all of the bonds for then there is no fraud or breach of trust in derogation of the widow’s property rights under state law. Upon dissolution of the community one-half of the community property belonged to Angel Yiatchos, who was free, as of the time of dissolution, to dispose of this half as he pleased. He might have left it to his brother by will. Instead he elected to effect the same result by utilizing federal savings bonds with their convenient feature of permitting ownership spanning two lives. On the assumption, then, that the wife is entitled to half of the estate, but not half of each particular item of property, the bonds have not been used as an instrument of fraud ; and the survivorship provisions of the federal regulations must control, preempting, if necessary, inconsistent state law which interferes with the legitimate exercise of the Federal Government’s power to borrow money. Free v. Bland, supra. Petitioner is therefore entitled to all of the bonds if the widow consented to making him the beneficiary or if under Washington law the surviving spouse does not have a one-half interest in each community asset. But even if the wife is not barred by her own consent or by the nature of her interest from claiming a half interest in the bonds, petitioner is entitled to the other half, the half which belonged to the deceased and could be disposed of by him to the beneficiaries of his choice. The Washington court deemed the transaction void ab initio and required the deceased’s half to pass by his will rather than by virtue of the bonds and the force of the regulation. But the petitioner was entitled to the proceeds only on the death of the husband, and then only if the bonds had not matured or been cashed. During the husband’s life he was the registered owner of the bonds, and was therefore entitled at any time to convert them into cash upon presentation and surrender “as though no beneficiary had been named in the registration.” 31 CFR § 315.65. Aside from possible consequences of the wife’s consent or ratification, as long as Angel Yiatchos was alive the bonds were community property, and could be used by him— the manager of the community and the registered owner of the bonds — for community purposes just as the assets used to purchase them could have been so used. Thus, the holding of the court below, which requires that the bonds be disposed of by will or by state intestacy provisions, is nothing more than a state prohibition against utilizing savings bonds to transmit property at death, and is, for reasons stated above, forbidden by Free v. Bland, supra. We add but one caveat to our holding that petitioner is entitled to at least one-half the bonds. The bonds, it would appear, are less than one-half the gross estate, but the record does not compare the value of the bonds with one-half the net estate after payment of debts. It is our understanding that the deceased’s interest in the community property is chargeable with his separate debts and with one-half the community debts. Ryan v. Ferguson, 3 Wash. 356, 28 P. 910. It would not contravene federal law as expressed in the applicable regulations to require the bonds to bear the same share of the debts that they would have borne if they had been passed to petitioner as a specific legacy under the will rather than by the survivorship provisions of the bonds. The judgment of the Washington court is reversed insofar as it relates to one-half of the bonds, subject to the above remarks concerning the portion of the debts which may be allocable thereto. As to the other half the judgment is vacated and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_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. Lawrence L. SHULTS, Petitioner-Appellant, v. Harol L. WHITLEY, et al., Respondents-Appellees. No. 91-16900. United States Court of Appeals, Ninth Circuit. Submitted Dec. 15, 1992. Decided Dec. 23, 1992. Lawrence L. Shults, pro se. Robert E. Wieland, Deputy Atty. Gen., Carson City, NV, for respondents-appellees. Before: GOODWIN, O’SCANNLAIN and RYMER, Circuit Judges. The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App.P. 34(a); 9th Cir.R. 34-4. PER CURIAM: Lawrence L. Shults appeals the district court’s denial of his petition for a writ of habeas corpus. Shults was convicted in Nevada state court of first degree murder and sentenced to life imprisonment without possibility of parole. Shults argues that his habeas petition should be granted because the district court refused to give his requested instruction that no inference be drawn from his failure to testify. A district court’s decision whether to grant a writ of habeas corpus is reviewed de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). We have jurisdiction pursuant to 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we affirm. Shults did not testify at trial. He proposed the following jury instruction: The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn, from the failure of a defendant to testify. As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The trial court refused this instruction. Shults argues that the Supreme Court’s decision in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), controls this case. In Carter, the Court held that a “no inference” instruction, when requested by a defendant, is required by the Fifth and Fourteenth Amendment right against self-incrimination. Id. at 305, 101 S.Ct. at 1121. However, the rule of Carter does not apply retroactively on collateral review under the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Supreme Court held that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310, 109 S.Ct. at 1075. In Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), the Court reiterated that “a decision announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Butler, 494 U.S. at 412, 110 S.Ct. at 1216 (internal quotation marks omitted). A rule is not “dictated by precedent” if “reasonable jurists [might have] disagree[d]” that such a rule followed necessarily from prior decisions. Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (1990). In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that the Constitution “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id. at 615, 85 S.Ct. at 1233. The rationale for this holding was that “comment on the refusal to testify ... cuts down on the privilege [against self-incrimination] by making its assertion costly.” Id. at 614, 85 S.Ct. at 1232-33. Shults argues that the holding in Griffin dictated the rule announced in Carter. We believe, however, that “reasonable jurists” could well have concluded that adverse comment by the prosecutor or judge regarding a defendant’s failure to testify makes the assertion of the Fifth Amendment privilege “costly” to a defendant in a manner and to a degree that refusal to give a requested instruction forbidding adverse inference by the jury from an accused’s silence does not. Thus we do not think the Court’s decision in Griffin “dictated” the result in Carter. The Court might without self-contradiction have held that, although the Constitution requires that judge and prosecutor alike refrain from affirmative comment on a defendant’s silence, a jury may properly be left free to draw whatever inferences it wishes from that silence. Our conclusion is bolstered by the fact that the Court expressly reserved judgment in Griffin on the question it finally answered in Carter, suggesting that the Court did not view its holding in the latter case as in any sense foreordained by its holding in the former. See id. at 615 n. 6, 85 S.Ct. at 1233 n. 6; see also Lakeside v. Oregon, 435 U.S. 333, 337, 98 S.Ct. 1091, 1093-94, 55 L.Ed.2d 319 (1978) (same). We therefore hold that Carter announced a new rule. Nor does the rule of Carter fall within either of the two exceptions set out in Teague. Carter does not “place[ ] ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ ” Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part)), and does not mandate a procedure which is “ ‘implicit in the concept of ordered liberty,’” id. (citing Mackey, 401 U.S. at 692, 91 S.Ct. at 1180, quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)). The Nevada Supreme Court affirmed Shults’s conviction on direct appeal on September 5, 1980, 96 Nev. 742, 616 P.2d 388. Because Shults’s conviction was thus final before Carter was decided, Carter does not apply to his habeas petition. Furthermore, Shults does not show that failure to give the requested instruction otherwise violated due process. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963) (“State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.”) Therefore, the failure to give the requested instruction does not warrant habeas relief. AFFIRMED. . Shults's remaining claims are addressed in an unpublished memorandum disposition filed concurrently with this opinion. 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_state	43	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". Ruby Dianne HILL and James Hill, Jr., Plaintiffs, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee, v. STATE OF TENNESSEE, Third-Party Defendant-Appellant. No. 71-1226. United States Court of Appeals, Sixth Circuit. Jan. 13, 1972. Everett H. Falk, Asst. Atty. Gen., Nashville, Tenn., Milton P. Rice, Deputy Atty. Gen., State of Tennessee, Nashville, Tenn., on brief; David M. Pack, Atty. Gen., State of Tennessee, Nashville, Tenn., of counsel, for appellant. William Kanter, Department of Justice, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Department of Justice, Washington, D. C., Charles H. Anderson, U. S. Atty., Nashville, Tenn., on brief, for ap-pellee. Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges. PHILLIPS, Chief Judge. The question presented on this appeal is whether the United States, when Hable to an individual plaintiff under the Federal Tort Claims Act, can maintain an action for contribution against the State of Tennessee as third party defendant. The doctrine of sovereign immunity prevails under Tennessee State law. It is undisputed that the State would not have been subject to suit by the original plaintiffs under the facts of this case. Ruby Dianne Hill, the minor plaintiff, was injured while attending a football game on the campus of Middle Tennessee State University at Murfreesboro, Tennessee. Her injuries occurred when she ran in front of a cannon when it was being discharged to celebrate a touchdown. The cannon was owned and operated by the United States through Army personnel attached to the ROTC unit at the University. The complaint was filed by Miss Hill, by next friend, and by her father against the United States. The United States filed a third party complaint against the State of Tennessee, alleging negligence on the part of the State and demanding judgment over against the State for one-half of any damages, costs and disbursements that might be adjudged against the United States and in favor of plaintiffs. The State filed a motion to dismiss the third party complaint on the principal ground that the sovereign immunity of the State would not allow the United States to implead the State in a direct action brought by a citizen of Tennessee against the United States under the Federal Tort Claims Act. This motion to dismiss was overruled by the District Court. The United States and the State thereupon filed a stipulation under which each agreed that the action of the plaintiffs be settled for a total sum of $163,367.01, leaving as the sole remaining issue the question of the right of the United States to recover contribution from the State. A compromise settlement with plaintiffs was made by the United States pursuant to this stipulation. The District Court granted the motion for summary judgment filed by the United States. Judgment was entered against the State for $81,631. The State of Tennessee appeals. We reverse. At the outset we are met with the well recognized principle that State law is controlling in actions under the Federal Tort Claims Act. 28 U.S.C. § 1346(b); United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 10 L.Ed.2d 805; Mider v. United States, 322 F.2d 193, 197 (6th Cir.). Article 1, § 17 of the Constitution of Tennessee provides as follows: “Sec. 17. Open courts — Redress of injuries — Suits against the State.— That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” In contrast to the action of Congress in waiving the sovereign immunity of the United States by enacting the Federal Tort Claims Act, the Legislature of Tennessee, pursuant to the above-quoted provision of the State Constitution, passed the statute now codified as TCA § 20-1702, which provides as follows: “Actions against state prohibited.— No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state. [Acts 1873, ch. 13, § 2; Shan., § 4507; Code 1932, § 8634.]” The Supreme Court of Tennessee has given strict construction to these constitutional and statutory provisions, holding that suits cannot be maintained to recover money against the State in the absence of affirmative legislative authority. Daugherty v. S & W Construction Co., 196 Tenn. 357, 268 S.W.2d 94; Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953; Moore v. Tate, 87 Tenn. 725, 11 S.W. 935. It is well established under Tennessee law that an action will not lie against the State unless the words of the statute are so unmistakable as to leave no doubt of the legislative intent that the State be subjected to suit. Phillips v. Marion County, 166 Tenn. 83, 59 S.W.2d 507. The State of Tennessee has waived its immunity from liability in negligence actions only to the limited extent provided in the statute creating the State Board of Claims, TCA §§ 9-801— 815. The jurisdiction of the Board over claims for injuries and property damage arising from the negligence of State employees is prescribed by TCA § 9-812. The Board of Claims is composed of the six State officers: the Commissioner of Highways, the Commissioner of Revenue, the State Treasurer, the Comptroller of the Treasury, the Secretary of State and the Attorney General. The Board has certain jurisdiction in addition to the authority outlined in footnote 1, including the administration of a workmen’s compensation system for the benefit of State employees. Its decision with respect to any claim filed with it is final, TCA § 9-814, and cannot be reviewed by the courts. Quinton v. Board of Claims, supra, 165 Tenn. 201, 54 S.W.2d 953. It is not a judicial body, but exercises through quasi-judicial functions jurisdiction over certain classified claims prescribed by the State legislature. Hill v. Beeler, 199 Tenn. 325, 328, 286 S.W.2d 868. No action against the State of Tennessee could have been filed by plaintiffs in either the State or Federal Courts for any negligence of State personnel in the shooting of the cannon resulting in injuries to the minor plaintiff. The only remedy as against the State would have been by filing a claim before the State Board of Claims. Instead of pursuing their remedy before this Board, plaintiffs elected to file action against the United States. The District Court held that the United States has a right to recover contribution from the State as joint tort-fea-sor. The question of the right to recover contribution from a joint tort-feasor has not followed a consistent course in Tennessee. Originally the right of contribution was grounded in principles of equity, and did not apply to actions arising from a tort. Gibson’s Suits in Chancery (5th ed.) § 1012, p. 234. Until recent years Tennessee followed the rule that where two parties participate in the commission of a tort, one tort-feasor is not entitled to contribution from the other. Cohen v. Noel, 165 Tenn. 600, 603, 56 S.W.2d 774; Yellow Cab Co. v. Pewitt, 44 Tenn.App. 572, 316 S.W.2d 17; Fontenot v. Roach, 120 F.Supp. 788 (E.D.Tenn.). This rule has been modified by subsequent decisions: American Gas Co. v. Billingsley, 195 Tenn. 448, 260 S.W.2d 173; Davis v. Broad Street Garage, 191 Tenn. 320, 232 S.W.2d 335; Southern Railway Co. v. Foote Mineral Co., 384 F.2d 224, 227 (6th Cir.); Higgins v. Graves, 337 F.2d 486 (6th Cir.), aff’g, 210 F.Supp. 98 (E.D.Tenn.). We do not find it necessary to pass upon the issue of whether the United States would be entitled to recover contribution under these later decisions if the defendant in the present case had been a private individual, instead of a sovereign State. Suffice it to say that contribution is not available under Tennessee law between joint tort-feasors when there is no common liability between them because one of the tort-feasors is the beneficiary of an immunity. See Chamberlain v. McCleary, 217 F.Supp. 591, 594 (E.D.Tenn.), a case involving a domestic immunity, and authorities therein cited. Thus, as we interpret the law of Tennessee controlling at the time involved in the present case, the right of contribution between joint tort-feasors was conditioned upon the existence of a common liability of the joint tort-feasors to the injured party. In the absence of common liability, there was no right of contribution. Under the reasoning of Chamberlain v. McCleary, supra, where a joint tort-feasor is the beneficiary of an immunity which would preclude liability to the injured party, there is no right of contribution against the immune tort-feasor. Any right of the United States to contribution from the State of Tennessee is derivative of liability of the State to the injured parties, i. e., the original plaintiffs. Under the doctrine of sovereign immunity, the original plaintiffs could not have maintained a lawsuit against the State of Tennessee. It follows that there is no right of contribution as between the United States and the State. It is contended that the United States has the right to sue the State of Tennessee in a separate action, United States v. Texas, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285, and therefore can maintain this proceeding against the State as a third party defendant. It is true that the United States generally has a right to sue a State “without regard to the subject of (the) controversies.” Ibid, at 646, 12 S.Ct. at 494. Under the facts of the present case, however, involving contribution between joint tort-feasors where the right of the United States is derivative of the liability of the State to the original plaintiffs, the same defense would be available in an original action as under a third party complaint. We do not construe United States v. Texas as conferring any right of action under the facts of the present case. In view of our disposition of the case we find it unnecessary to pass upon the related issues which have been the subject of disagreement among at least three district courts when the United States has filed third party actions against States. The judgment of the District Court is reversed. The case is remanded with instructions to dismiss the third party complaint. . 9-812 Injuries and property damage arising from negligence of state employees — Claims based on contract. — Said board of claims is vested with full power and authority to hear and determine all claims against the state for personal injuries or property damages caused by negligence in the construction and/or maintenance of state highways or other state buildings and properties and/or by negligence of state officials and employees of all departments or divisions in the operation of state-owned motor vehicles or other state-owned equipment while in the line of duty, its awards under this section to be paid out of the general highway fund in the case of claims arising from the negligence of emxdoyees of the department of highways and out of the general fund in the case of claims arising from negligence of emxiloyees of all other departments. Said board of claims is vested with full power and authority to hear and determine all claims against the state based upon, or arising out of, any written contract executed as prescribed by law on behalf of any department of the. state, and its awards, if any, under this section are to be paid out of funds of the department in each case available for the performance of the contract. Any settlement or award made by said hoard shall be made only after a careful and thorough investigation and examination of all facts and circumstances in controversy and no award or settlement shall be made unless the facts found by said board of claims establish such a case of liability on the part of a department or agency of the state government ns would entitle the claimant to a judgment in an action at law, if the state were amenable to such. No claim provided for under this section may be considered by the, board of claims which has not been presented to it by sworn petition duly filed within one (1) year from the date on which the claim first accrued. The provisions of this section shall api>l.Y only to claims against the state arising from the performance of functions of its various departments and agencies imxiosed ui)on them by law where in such performance said departments have exclusive control of the personnel and equii>ment involved. . The decision of the Supreme Court of Tennessee in Vaughn v. Gill, 264 S.W.2d 805, is not published in the official State reports. It apparently was withdrawn from publication by direction of the Supreme Court of Tennessee. . In 1968 Tennessee enacted the Uniform Contribution among Tortfeasors Act, TO A §§ 23-3101—23-3106. This statute provides that no right of contribution among tort-feasors shall exist “where, by virtue of intrafamily immunity, . or like immunity, a claimant is barred from maintaining a tort action for injury or wrongful death against the party from whom contribution is sought.” This statute, which was enacted after the accident giving rise to the present litigation, appears to have been declaratory of the then existing Tennessee law on this subject. . Lee v. Brooks, 315 F.Supp. 729 (D. Hawaii); Park v. United States, 241 F.Supp. 297 (N.D.N.Y.); Williams v. United States, 42 F.R.D. 609 (S.D.N.Y.). See also United States v. Illinois, 454 F.2d 297 (7th Cir. Nos. 18,558 18,559, December 8, 1971). 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_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. In the Matter of the CENTRAL RAILROAD COMPANY OF NEW JERSEY, Debtor. Appeal of COMMONWEALTH OF PENNSYLVANIA and Pennsylvania Public Utility Commission, in No. 71-2162. Appeal of READING COMPANY, in No. 72-1049. Nos. 71-2162, 72-1049. United States Court of Appeals, Third Circuit. Argued March 9, 1972. Decided March 10, 1972. Gordon P. MacDougall, Washington, D. C., Philip P. Kalodner, Pennsylvania Public Utility Commission, Harrisburg, Pa., for appellants in 71-2162. William P. Quinn, Philadelphia, Pa., for appellant in 72-1049. Stanley Weiss, Newark, N. J., for ap-pellee, trustee. Pitney, Hardin & Kipp, Roger C. Ward, Newark, N. J., for appellee, Manufacturers Hanover Trust Co. Dechert, Price & Rhoads, Matthew J. Broderick, Philadelphia, Pa., for inter-venor-appellee, Lehigh Valley Coal and Navigation Co. in 72-1049 only. Before MeLAUGHLIN, VAN DUSEN and ALDISERT, Circuit Judges. OPINION OF THE COURT PER CURIAM: We have carefully considered all the contentions presented by the various Appellants by briefs and oral argument in these expedited appeals. We do not find them persuasive to require that Order No. 441 of the Bankruptcy Court be vacated. The Order No. 441 of the Bankruptcy Court will be affirmed. 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_usc2	29	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 28. 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. DEENA PRODUCTS CO. v. UNITED BRICK & CLAY WORKERS OF AMERICA et al. No. 11404. United States Court of Appeals Sixth Circuit. Feb. 18, 1952. Wheeler & Marshall, Paducah, Ky., for appellant. Joseph S. Freeland, Paducah, Ky., Woll, Glenn & Thatcher, Washington, D. C., John Y. Brown, Lexington, Ky., and Nathan Duff, Perth Amboy, N. J., for appellees. Before SIMONS, MARTIN and MILLER, Circuit Judges. PER CURIAM. This cause came on to be heard upon the record and upon the briefs and oral arguments of attorneys for appellant and ap-pellees, respectively, and upon the motion of appellees to dismiss the appeal; From all of which it appears that this court has no jurisdiction to entertain the appeal, for the reason that the appellant company failed to file a notice of appeal in the United States District Court within the time prescribed by law and by the Rules of Civil Procedure, inasmuch as more than thirty days had elapsed after the motion of appellant for a new trial had been overruled by the District Court before the appellant’s motion for a new trial was reinstated and again overruled, the District Judge having stated that his purpose in setting aside the original order overruling the motion for a new trial was to enable the plaintiff to prosecute an appeal; And it being the view of this court that, -both under Civil Procedure Rule 73 (a), 28 U.S.C.A., and section 2107 of Title 28 U.S.C., as amended by Act of Congress of May 24, 1949, the filing of a notice of appeal within the prescribed time is mandatory and jurisdictional and cannot be extended by waiver or order of court, and the right to appeal is lost if notice of appeal is not filed within the time prescribed. (See Marten v. Hess, 6 Cir., 176 F.2d 834); And it being the further view of the court that any damages suffered by the appellant, by reason of the acts complained of, are, regardless of the liability or non-liability of the appellees to it under the provisions of the statute, section 303(a) (1) of the Labor Management Relations Act of 1947, section 187(a) (1), Title 29, U.S.C.A., contingent and entirely dependent upon certain contractual relations with its subsidiary, Deena Artware, Inc., which contractual relations did not exist, and accordingly are not recoverable in this action ; The motion of appellees to dismiss the appeal filed October 15, 1951, is granted; and the appeal is ordered to be dismissed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. 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_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. KANNER v. UNITED STATES. Circuit Court of Appeals, Seventh Circuit. September 30, 1929. No. 4107. W. P. Crawford, of Superior, Wis., for appellant. W. H. Dougherty, of Janesville, Wis., for the United States. Before ALS CHULEE, EVANS and PAGE, Circuit Judges. ALSCHULER, Circuit Judge. Kanner appeals from a judgment whereunder a sentence of 30 years’ imprisonment was imposed for his alleged participation in the burglary and robbery of the Superior, Wis., post office, November 20, 1925. For this offense, as well as for conspiracy to commit it, and also that of putting the assistant postmaster and the watchman of the post office in jeopardy of their lives by the use of revolvers and guns in effecting ' the robbery, Kanner, Charles Clause, Dave Berman, and a number of others, were jointly indicted. Kanner alone was tried. That the offenses charged were committed appears beyond possibility of doubt, and, indeed, is not controverted. It is contended, not only that the evidence wholly fails to show Kanner’s participation, and that thus there was error in denying his motion for a directed verdict, but also that numerous errors intervened in the admission and rejection of evidence upon the trial. 1. On the evening of November 20, three men came to the door of Assistant Postmaster MeGill’s residence, and were by him admitted to the house. They all went into an unlighted room, where McGill was ordered to be seated. Two of the men had donned masks, and the third went to a lighted room, where MeGill’s daughter sat reading. She was brought into the darkened room and seated by her father. A son, Leon, was upstairs, and he says that one of the men, then without mask, came upstairs and brought him into the room with the others. The men tied the hands of the father and son, and all sat in the room to await the return of other members of the household, who were out for the evening. After several hours’ waiting, during which the intruders talked and smoked, the other members returned, and they were brought into the room, and the hands of one of them, Emmet McGill, were bound. The assistant postmaster was then called aside and compelled/ to surrender the keys to the post office and to divulge the combination of the vault. Two of the intruders then left the house, and the third remained to guard the persons there. After several hours a fourth man came into the house, and left it with the guard, having cut the house telephone wires. About 2 a. m. the janitor at the post office was held up by two men with guns, blindfolded, and his hands tied. The vault was opened and robbed of $70,000 in cash and stamps. The janitor was then bound and gagged and locked inside. Some of the members of the McGill household identified, from pictures, Berman, Clause, and Kanner as among the intruders, and search was at once begun for them. The government issued circulars bearing their pictures, and stating the crime for which they were wanted, and circulated them in large numbers all over the country. It was not until September 17, 1927, nearly two years after the crime, that Kanner was picked up in Chicago in a general police raid. The identifying testimony of members of the McGill household is vigorously assailed as affording no evidence upon which conviction could be predicated. This evidence alone was not so positive as might be desired to predicate a conviction thereon. The elder McGill, while testifying that Kanner was one of the three, on cross-examination stated that, while this was his best judgment, it was possible he was mistaken, and that he would not swear to it, still saying he was never doubtful about it. There was more or less want of positiveness in the testimony of such of the others who were present that night and testified to the identification. They were positive that the pictures which they identified shortly after the robbery were those which others identified! as photographs of Kanner, Clause, and Berman. . It was testified that for a little while each robber was unmasked at the house, and their faces were seen. Whether the identification of these witnesses, standing alone, was such as would support the verdict, we are not called upon to determine. That is not the state of this record. There was other evidence, which, with that of these witnesses, fairly presented to the jury the question of Kanner’s participation in this affair. The elevator operator at the post office building testified that on November 20 a man, whom she afterwards identified as Kanner, rode on the elevator, and made some inquiries which particularly impressed her as being unusual, and that he went into a courtroom in the building. A couple of days after the robbery she told the postal inspectors of the man she had taken to the third floor that day, and when she saw him in jail after his arrest she identified him as the same person. The engineer of the Federal Building at Superior testified to having seen Kanner in the basement, where he inquired for the toilet, and left without going there. The engineer also talked with the inspector a day or two after the robbery, and on seeing Kanner in jail identified him as the same man who> was in the Federal Building that day. Defendant assails this testimony as improbable and incredible. This we cannot conclude. When it is considered that the robbery followed within a comparatively few hours after their seeing this man, it is not improbable that they became impressed with his appearance. It is true that these two did not see him participating in the robbery, but their testimony has special significance, when it is considered that Kanner in his testimony positively denied ever having been in Superior prior to the trial. Then there is the testimony of McNeill— a desperate criminal serving a long sentence for a bank robbery, but an old acquaintance of Kanner — who testified that in conversations Kanner had admitted his participation in the Superior robbery. While McNeill is not such a witness as one would deliberately choose, and is probably deserving of the maledictions which Kanner’s counsel so liberally heap upon him, it was, after all, for the jury to determine, as between him and Kanner, both of whom they saw and heard, whether they would credit McNeill, who testified to the admission, or Kanner, who denied it. Enough has been stated to justify our conclusion that no error intervened in denying Kanner’s motion for a directed verdict. 2. Error is charged in admitting the testimony of Farley, a police officer of Sioux City, Iowa, to the effect that in the summer of 1925 Kanner and Berman were together at Sioux City, and that Kanner introduced the witness to Berman. It is contended that this circumstance had no bearing on the charge in question; but it tended to show prior relations between Kanner and Berman, and where, as here, a conspiracy is undertaken to be shown, any evidence tending to show association or relations between the alleged conspirators is proper, even though it does not definitely appear that that particular relation was in furtherance of the conspiracy charged. Berman was identified as one of those present at McGill’s house, and, in undertaking to prove that Kanner was one of the conspirators, proof of their association or acquaintance, while not alone enough to establish the conspiracy, yet has sufficient bearing thereon to make it admissible. Baugh v. United States (C. C. A.) 27 F.(2d) 257; United States v. Greene et al. (D. C.) 146 F. 803; Reinhold v. State, 130 Ind. 467, 30 N. E. 306. 3. Error is assigned on the admission of the evidence of a parole officer of the Still-water, Minn., penitentiary, to the effect that Clause, who had been a prisoner at that penitentiary, was a man of more than average education. Although this is quite remote, and perhaps irrelevant on the direct question of Kanner’s participation, it is sought to ba justified in view of testimony to the effect that at the house that night,’the. person identified as Clause diseussed books and authors during part of the several hours of waiting. It tended — however, quite remotely — to prove that the man who had been a prisoner at Stillwater was the same person who was that night at the house. We do not see how this in any event could have prejudiced Kanner. 4. Error is charged in the admission of 'testimony of postal inspectors and police officers, of a two years’ nation-wide search for Kanner, and in the admission of printed circulars bearing his picture and that of Berman and Clause, offering a reward for information leading to their arrest. The government contends that this evidence was competent to prove flight and concealment, evidence of which is admissible as tending to show the state! of mind of the defendant in relation to the alleged crime. Hickory v. United States, 160 U. S. 408, 16 S. Ct. 327, 40 L. Ed. 474; Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528. Of the wide circulation of the notices and offer of reward for his arrest, Kanner was fully aware. He knew that he was wanted for this crime, and the vain efforts of the officers to find him would have some tendency to show that he was eluding them. True, it would not positively prove this, but it would have that tendency, especially when eoupled with other evidence which the record affords, which tends further to prove concealment, such as his assumption of a false name. We are satisfied that in the admission of this evidence there was no error. 5. Error is assigned on the evidence of a postal inspector to the effect that, in conversation with Kanner, while he was under arrest, Kanner stated he had heard that several persons, whom he named, had committed the Superior robbery, and, further, that the witness was permitted to testify that at the time of the trial two of the men whom Kanner named were in prison and the third a fugitive. He' also testified to the discussion with Kanner of other alleged crimes, none of which he admitted. Considerable of the conversation testified to is rather far-fetched, and might as well, or better, have been omitted. This is especially so with reference to the testimony of the whereabouts, at the time of the trial, of men whom Kanner mentioned in the conversation. It does not appear that Kanner had associated with these men, or even knew them, and they were not named in the indictment. That they were in prison, or fugitives from justice, would tend rather to corroborate the rumor that they committed the robbery, by showing that they were criminals. Kanner could not have been harmed by the statement of their incarceration or disappearance. Generally speaking, evidence of conversations with Kanner was admissible, and it was not improper to permit testimony of anything he said with reference to the Superior robbery. There was no error in permitting testimony of what he said he had heard as to who were the perpetrators. 6. Probably the most significant contention of error is in relation to the testimony of McNeill respecting participation of Kanner and Berman with him in the robbery of a Milwaukee bank in December, 1924, for which offense MeNeill, at the time of testifying, was serving a 25-year term of imprisonment under sentence by a Wisconsin state court. It was competent to show the degree of acquaintance and intimacy between Mc-Neill and Kanner, to rebut the improbability that Kanner would be having such conversations with an entire stranger. But, even though this alone might not justify evidence of Kanner’s commission of an independent crime, in this case the evidence was directed, not only to Kanner’s acquaintance with MeNeill, but mainly to his relations with one of his alleged eo-eonspirators, Berman, who was identified as one of the three at McGill’s house. Although this evidence tended strongly to prove Kanner’s commission of an independent crime, it tended also to establish an intimate and a criminal relation and associatiop between him and Berman, whieh we hold was entirely proper to be shown, as bearing on their entry into the conspiracy here alleged. And it was not rendered incompetent because the evidence disclosed also the commission of an independent crime by Kanner. Moore v. United States, 150 U. S. 57, 14 S. Ct. 26, 37 L. Ed. 996; Waldeck v. United States (C. C. A.) 2 F.(2d) 243. While it is unfortunate that in such a situation the harm to a defendant occasioned by evidence of other criminality cannot always be wholly obviated, the best and the usual manner of meeting it is through the court’s charge to the jury, duly cautioning that the evidence on the independent crime affords no proof of the commission of the crime charged. The transcript here does not disclose the court’s charge to the jury. It must therefore be presumed that the jury was duly charged by the court that such evidence must be limited in its application to the particular purpose for which it was admitted. This observation applies, not alone to this particular allegation of errors, but to others as well where the evidence complained of was proper only for a limited purpose, notably the alleged error in admission of evidence of concealment and flight. The transcript shows that, when Kanner’s counsel moved the court to strike out all testimony tending to connect Kanner with the bank robbery, the court said: “So far as the testimony may) tend to connect this defendant with the bank robbery, that will be taken care of in the instructions to the jury.” It may be said, in passing, that most of the details of the bank robbery were brought out in the lengthy cross-examination by Kanner’s counsel. 7. We find no merit in the contention that McNeill’s cross-examination was unduly restricted. This applied mainly to further details of the bank robbery, bearing on the disposition of the bank plunder, and as to McNeill’s whereabouts in March, 1925. There is no indication in the record as to what the proposed evidence would show, and it does not appear there was harm to Kanner from this inconsequential limitation of the quite lengthy cross-examination of McNeill. 8. It is objected that evidence of Kanner’s prior arrest on some other charge was not admissible against him. He had testified on direct examination to having gone under the name of Schmidt, and under that name having bought an automobile some time after the Superior robbery, whieh he was using in the illicit transportation of intoxicating liquor, an occupation in whieh he testified he was long quite active. He said this was the only assumed name he had ever taken, but in reply to the question as to a prior arrest admitted that in Grinnell, Iowa, a few years before the robbery, his name appeared as Hooper. He contended the police gave him, that name, and further testified to circumstances indicating his innocence of wrong doing in Grinnell, and his discharge when brought before the magistrate. Under the circumstances it was} not only competent to show these facts, as bearing on his assuming other names, but the entire evidence thereon, aside from that of change of name, did his ease no perceptible harm. 9. The propriety of the evidence of government witnesses Diers and Braeunert is vigorously assailed. Kanner had testified that at no time had he ever been in Milwaukee, and he and others had testified that for a considerable period prior to December, 1924, and for a long time after the Superior robbery, he continuously wore a mustache. These witnesses testified that they saw him in Milwaukee in December, 1924, Diers at his Milwaukee grocery store with McNeill, and Braeunert at her home, and that then he had no mustache. In testing their recollection of an occurrence so long antedating the time of the trial, it was brought out, largely on cross-examination, that Breaunert had rented her garage to the man whom she identified as Kanner, and as a circumstance fixing the transaction in her mind she related that he brought an automobile there, whieh very shortly after the bank robbery the Milwaukee police removed. While incidentally this would have a bearing upon Kanner’s connection with the Milwaukee robbery, for reasons above stated this did not render the evidence incompetent. In rebuttal of Kanner’s testimony it was competent to show, not only that he had been in Milwaukee (although for that purpose the court in the first instance declined to admit it), but it was also competent as showing he was not wearing a mustache within the period in whieh he testified he was so wearing it. The reference to the other circumstances was competent to show how it was that Braeunert fixed the time and identified the man. While the testimony was being offered Kanner’s counsel said: “May we save the record, so that it may be definitely known that this testimony relates only to the question of whether or not the defendant wore a mustache, and that it will not be considered for any other purpose?” To which the court replied: “If this testimony is offered for the purpose of showing that, and something else is shown incidentally, I suppose it can be received, and, if it ought to be received for a narrow purpose, it can be taken care of in the instructions.” At the close of the direct examination, Kanner’s counsel requested the court then to instruct the jury that such testimony was limited to the single purpose of rebutting the claim that Kanner wore a mustache during the time mentioned, whereupon the court said: “The jury will bear in mind that this evidence has been received solely with respect to the issue raised as to whether the defendant wore a mustache at or about the time involved in this suit and at the time covered by this witness and other witnesses, and will not consider the evidence of this witness as bearing upon any other phase of the case.” This was in substance said as to the testimony of each of these witnesses, and what we have said about the court’s general charge to the jury is likewise here applicable. 10. A number of other errors are alleged and urged upon the admission of testimony as to which no objection was made and no exceptions saved. While a few of these instances may show some impingement upon the strict rules of evidence, we deem none of them sufficiently important to have materially affected the result. Wherefore, as .well as for want of objection, we refrain from further discussion of them. 11. It is urged, with much earnestness, that serious error intervened in permitting the jury, unaccompanied by the defendant, to view the various parts of the post office building where the robbery was enacted. The contention is that this was violative of the Sixth Amendment to the Constitution, which provides that the accused shall enjoy the right to be confronted with the witnesses against him. It appears that the judge accompanied the jury on this tour of inspection, and pointed out the different rooms and corridors which the district attorney contended the robbers visited. No evidence was heard. Wigmore maintains that the Sixth Amendment does not apply to a view of premises. He says: The constitutional sanction of that principle applies solely to testimonial evidence, to “witnesses”; no one supposes that it applies to circumstantial evidence, and no one should suppose that it applies to that third source of proof, namely, autoptic proference, real evidence, or the tribunal’s observation of the thing itself. Wig-more, Eyidence, § 1803 But if the amendment had application to a view by the jury, then upon authority as well as reason the presence of the defendant on such view may ba waived. The law thereon is stated thus in 16 Corpus Juris, § 2069: It is generally held that defendant is entitled to be present when the jury are taken to view the place of the crime, on the ground that this is the taking of evidence and a part of the trial. This right, however, is in the nature of a special privilege which is for the benefit of accused alone, and hence it has been held that it is not essential that he should be present, and that the privilege may be waived expressly by counsel in defendant’s presence, or by the failure of the accused to request or to avail himself of the privilege of accompanying the jury, or by refusing to go with the jury. See, also, Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913 C, 1138; Valdez v. United States, 244 U. S. 432, 37 S. Ct. 725, 61 L. Ed. 1242; Grove v. United States (C. C. A.) 3 F.(2d) 965; Price v. United States, 14 App. D. C. 391. When, after the opening statement by the district attorney, it was proposed to have the jury view the premises, counsel for Kanner said, “We have no objection to that.” It was stated by the court that the view would be made in the presence of counsel for government and defense, the marshal, the bailiff, and the defendant, with the officer who looks after him. Thereupon this colloquy between the court and counsel for defense took place: “Counsel: I do not know just who you limited that to — counsel and the court and the marshal, limited to them? “The Court: No, and the defendant. “Counsel: That is, you are according us that privilege, I take it. “The Court: Yes, I think certainly he is entitled to go if he wishes to go and counsel wishes him to be there. “Counsel: Well, I think not. No, we are not interested in that; I presume he is not. “The Court: Then he may stay here. “Counsel: Yes.” • • • • • “Counsel: If the court please, I insist at this time to hear from counsel what they intend to do down there in relation to the various rooms; if it is just a designation of a particular room. “District Attorney: That is all. “Counsel: That is all] without any particular remarks. “District Attorney: We want to designate the mail racks, so as to know what they are. We do not want any testimony taken about them, or in connection with them, just so with those inanimate objects the jury will know what they are. “Counsel: No objection. “The Court: All right, you may proceed.” ■ The transcript then states that “the jury and those designated by the court proceed by the stairway to the basement.” Further on the transcript states that the defendant did not accompany the party. It would thus appear from the record that defendant’s counsel did accompany the inspection party. A waiver more complete, definite, and conclusive would be difficult to imagine. Surely no error was committed by the court in failing by force to compel the defendant to accompany the jury upon his distinct refusal to do so. 12. Assignments of error, predicated upon alleged improper remarks of the court and of counsel for the government, are so manifestly without material basis that we refrain from discussing them. No substantial error appearing, the judgment 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_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. W. A. “Gus” FREEMAN, Plaintiff In Error, v. UNITED STATES. Circuit Court of Appeals, Eighth Circuit. April 4, 1928. No. 8099. Pratt P. Bacon, of Texarkana, Ark., for plaintiff in error. S. S. Langley, U. S. Atty., of Ft. Smith, Ark. PER CURIAM. Writ of error dismissed, without costs to either party in this court, per stipulation of parties. I 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_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. NEW YORK STATE ELECTRIC & GAS CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Village of Penn Yan, New York, Municipal Electric Utilities Association of New York State, Intervenors. No. 714, Docket 79-4185. United States Court of Appeals, Second Circuit. Argued March 31, 1980. Decided Sept. 30, 1980. Frederic H. Lawrence, New York City (Kenneth M. Jasinski, Huber, Magill, Lawrence & Farrell, New York City, on the brief), for petitioner. Jane C. Murphy, Washington, D. C. (Robert R. Nordhaus, Gen. Counsel, Jerome Nelson, Sol., Federal Energy Regulatory Commission, Washington, D. C., on the brief), for respondent. J. Cathy Lichtenberg, Washington, D. C. (Frederick D. Palmer, Duncan, Weinberg, Palmer & Miller, P. C., Washington, D. C., on the brief), for intervenors. Before VAN GRAAFEILAND and KEARSE, Circuit Judges, and GOETTEL, District Judge. Honorable Gerard L. Goette], Judge of the United States District Court for the Southern District of New York, sitting by designation. KEARSE, Circuit Judge: This is a petition by New York State Electric & Gas Corporation (“NYSEG”) for review of orders of the Federal Energy Regulatory Commission (the “Commission”), invalidating certain provisions in contracts entered into by NYSEG with, respectively, the Power Authority of the State of New York (“PASNY”) and the Village of Penn Yan, New York (“Penn Yan” or the “Village”) on the grounds that the provisions violated federal antitrust policy. NYSEG contends that the orders should be vacated because the Commission lacked jurisdiction over the contracts in question, because principles of state immunity make federal antitrust policy inapplicable, and because the Commission failed to comply with pertinent provisions of the Federal Power Act (“FPA”). We conclude that the Commission has jurisdiction to require the filing and modification of the challenged contracts, but that a hearing should have been held in order for the Commission to assess the public interest in those contracts and that the Commission’s orders, without complying with statutory requirements, require the provision of transmission services, known as “wheeling,” within the meaning of § 211 of the FPA. Accordingly, we vacate the orders and remand to the Commission for proceedings consistent with §§ 206, 211 and 212 of the FPA. I. FACTUAL BACKGROUND A. The Parties and the Contracts NYSEG is a New York corporation engaged in the generation, purchase, transmission and wholesale and retail distribution of electric power and energy. It is a public utility subject to the provisions of the FPA; it provides transmission services to PASNY and sells or has sold power to Penn Yan and other communities. Village of Penn Yan is a municipal corporation located in Yates County, New York. It owns an electric utility, Penn Yan Municipal Board, which is a wholesale purchaser and retail distributor of electric energy. References to “Penn Yan” include its electric utility. PASNY is “a political subdivision” of New York State which is responsible for helping to maximize “beneficial use” of the Niagara and St. Lawrence Rivers, including the development of hydroelectric power. N.Y.Pub.Auth.Law §§ 1002, 1001 (McKinney 1970 & Supp.1979-1980). Under the New York Power Authority Act, PASNY is directed and authorized, inter alia, to “make provision so that municipalities and other political subdivisions of the state... may secure a reasonable share of the power generated” by the Niagara and St. Lawrence hydroelectric projects, and to construct or acquire, by contract, the use of transmission lines to conduct electricity to purchasers. N.Y.Pub.Auth.Law §§ 1005.5, 1005.7 (McKinney Supp.1979-1980). PASNY generates energy at the Niagara Power Project and sells that power on a wholesale basis to NYSEG and to other customers by means of transmission lines furnished by NYSEG. The Commission, successor to the Federal Power Commission, has jurisdiction over all facilities for “the transmission of electric energy in interstate commerce and... the sale of electric energy at wholesale in interstate commerce.” FPA § 201, 16 U.S.C. § 824(b) (1976). It has the power to identify and remedy certain unjust or unreasonable rates, charges or contracts of public utilities. FPA § 206, 16 U.S.C. § 824e (1976). The present proceeding involves a 1961 contract between NYSEG and PASNY, referred to as NS-11, and a 1962 agreement between NYSEG and Penn Yan. The controversy arises out of the desire of Penn Yan for a modification of those contracts. The 1961 contract between NYSEG and PASNY, NS-11, recited PASNY’s intention “to enter into agreements... for the sale, transmission and distribution of power and energy from the [Niagara hydroelectric power development] Project with municipalities and rural electric cooperatives operating electric systems serving rural and domestic consumers within [PASNY’s] Niagara market area,” and provided that NYSEG would maintain “transmission facilities capable of transmitting Project power within the limits herein provided to such prospective purchasers from [PASNY].” The contract further provided that NYSEG would accept delivery of Project power “into its electric transmission system... and... deliver an equivalent amount of electric power and energy... to [PASNY] for its own use or for municipalities and rural electric cooperatives.” Article X, Paragraph 3 of NS-11, limited NYSEG’s obligation to deliver power for PASNY as follows: The electric power and energy to be delivered by [NYSEG] to [PASNY] for customers from the system of [NYSEG] will be limited to such electric power and energy as is necessary for the use, distribution and resale within the area limits. served as of the date hereof by the Villages of Bath, Castile, Endicott, Greene, Groton, Marathon, Penn Yan, Silver Springs and Watkins Glen, ChautauquaCattaraugus Electric Cooperative, Inc. and Steuben Rural Electric Cooperative, Inc., and for such other loads and customers of [PASNY] as may be mutually agreed upon from time to time. (Emphasis added.) Thus, the NYSEG agreement with PASNY did not obligate NYSEG to transmit Project power for the use of any area annexed to Penn Yan after 1961. In 1962, NYSEG and Penn Yan entered into a contract which terminated a 1956 agreement pursuant to which Penn Yan had been a wholesale purchaser of power from NYSEG. In the 1956 contract, Penn Yan had agreed to purchase from NYSEG all of the electrical energy required within the existing territorial limits of the Village and its franchise area for a 10-year period. In 1962, however, Penn Yan decided to purchase its power from PASNY instead of NYSEG, and so notified NYSEG. NYSEG took the position that this would constitute a breach of the 1956 agreement and would result in damages to NYSEG in the amount of $95,910.48. Penn Yan decided to pay NYSEG this amount to buy out of the 1956 agreement. Reciting (a) that Penn Yan “believe[s] that it is to its financial advantage to obtain its electrical energy requirements” from PASNY, (b) that the required energy to be supplied to PASNY could be delivered through NYSEG’s transmission facilities “under an appropriate contract” between NYSEG and PASNY, and (c) that NYSEG “has entered into an agreement with [PASNY] for the delivery by [NYSEG] of such power and energy as is necessary for the use, distribution and resale within the area limits served as of February 10, 1961” by Penn Yan, the 1962 agreement terminated the 1956 agreement, required Penn Yan to pay NYSEG $95,910.48 in settlement of its claims, freed Penn Yan to contract with PASNY for supply of Penn Yan’s energy needs, and required NYSEG to continue to supply Penn Yan with energy until such time as PASNY commenced to do so. Paragraph 3 of this agreement, however, included the following limitation: [Penn Yan] will take from [PASNY] under such contract only such electric energy required by the Village within the territorial limits, as of February 10,1961, of the Village and its franchise area outside the Village as approved by the Public Service Commission of the State of New York, (a) for its own use, and (b) for distribution and resale to its existing and future customers. This territorial limit was identical (with the exception, of course, of the date) to the limit provided in the 1956 agreement, and corresponded to the limit on NYSEG’s obligation to transmit PASNY energy as set out in Article X, Paragraph 3 of NS-11. In 1967, Penn Yan annexed an area known as Excell Estates, which had been part of the Town of Milo, a customer of NYSEG. Three years later, Penn Yan sought a modification of the 1962 agreement to permit the Village to serve as distributor to residential customers in Ex-cell Estates. NYSEG denied the request, noting that “Paragraph 3 of [the 1962] Agreement was specifically designed to preserve the territorial integrity of [NYSEG’s] franchise area as of February 10, 1961.” In March 1978, Penn Yan again requested a modification to enable it to supply power to Excell Estates. Again NYSEG refused. B. Proceedings Before the Commission On May 25,1978, Penn Yan filed with the Commission a petition for a declaratory order invalidating Article X, Paragraph 3 of NS-11 insofar as it limited the territories of Penn Yan and other communities to which NYSEG was required to transmit power for PASNY. The petition claimed, inter alia, that the contract provision violated the Niagara Redevelopment Act of 1957 (“NRA”) and the FPA, as well as state and federal public policy. Penn Yan subsequently moved to compel the filing by NYSEG of the 1962 agreement, and sought a declaration that Paragraph 3 of that agreement also was unenforceable. On July 20,1978, NYSEG sought to intervene in the proceeding on Penn Yan’s petition and opposed the petition on various grounds. In addition to challenging the jurisdiction of the Commission under the FPA and the NRA, NYSEG contended that neither its 1961 contract with PASNY nor its 1962 contract with Penn Yan attempted to restrict the area that Penn Yan could serve or the amount of power that Penn Yan could obtain from PASNY. The petition stated that NYSEG has declined to further modify its transmission obligation under NS-11 Paragraph 3... because, in the exercise of sound business judgment, NYSEG has determined that it would not be in the public or its corporate interest... when the result would be an unwarranted duplication of electric service in Excell Estates. In addition, the petition contended that “[t]he relief requested by Penn Yan, if granted, would only result in the Commission compelling NYSEG to ‘wheel’ power involuntarily for a direct competitor,” and NYSEG argued that neither the FPA nor the NRA requires NYSEG to provide unlimited transmission services. After receiving the above petitions, as well as comments from PASNY and several supplementary filings by Penn Yan and NYSEG, but without holding a hearing, the Commission, on March 28, 1979, rejected all of NYSEG’s arguments and declared Article X, Paragraph 3 of NS-11, along with Paragraph 3 of the NYSEG-Penn Yan agreement and any similar NYSEG agreements with other customers, unenforceable. As to its jurisdiction, the Commission stated: Under Section 201(b) of the Federal Power Act, a jurisdictional utility is one which sells or transmits electric energy at wholesale in interstate commerce. Therefore the 1962 Agreement and the provision of the NS-11 contract which provide for NYSEG transmission of PAS-NY power at wholesale to Penn Yan are contracts subject to our jurisdiction. While PASNY is exempt from our jurisdiction as a public authority under Section 201(f), NYSEG is a jurisdictional utility and must file these contracts under Section 205(c). Declaratory Order Modifying Jurisdictional Contracts [“Order”], Docket No. EL78-29 (March 28, 1979) at 4. As to the reasonableness of the challenged contract provisions, the Commission found those provisions to be a direct resale prohibition which served to “protect NYSEG from competition for retail customers and to restrict Penn Yan’s ability to extend its municipal system, thereby impairing and diminishing competition to serve retail customers in the extended territories.” Characterizing NY-SEG’s petition as admitting an anticompetitive purpose, the Commission ruled that the provisions violated federal antitrust policy. Finally, as to NYSEG’s argument that the requested modification of the contracts would result in an order compelling wheeling, the Commission pointed out that NS-11 itself obligates NYSEG to wheel, and that the challenged provision of NS-11 places restrictions on the purchasers’ use of wheeled power. Thus, the Commission characterized its order as one that removes a contractual restriction on the use of wheeled power rather than as one that actually compels wheeling. On April 24, 1979, NYSEG sought a rehearing, again urging, inter alia, that the removal of the territorial limitations resulted in an order compelling wheeling, and arguing that, although such an order was within the Commission’s authority under newly enacted statutory provisions, there had been no compliance with the substantive or procedural requirements of those provisions, FPA §§ 211, 212, 16 U.S.C.A. §§ 824j, 824k (Supp.1980). In addition, NY-SEG argued that the Commission lacked authority to issue the orders in question because PASNY has sole authority to determine the reasonableness of its contracts and because the challenged provisions were protected from antitrust scrutiny by state action immunity. After an initial order granting rehearing for the limited purpose of reconsideration, the Commission denied the application for rehearing, again rejecting all of NYSEG’s contentions. The Commission reiterated its view that the order did not compel wheeling and concluded, therefore, that §§ 211 and 212 were inapplicable. In addition, it ruled that no evidentiary hearing was needed since “the pleadings and the contracts themselves provide a sufficient factual basis for the Commission’s finding that the disputed provision is anticompetitive in effect and serves no countervailing public interest objective.” Order Denying Rehearing, EL78-29 (September 17, 1979) at 5. This petition for review followed. II. DISCUSSION NYSEG asserts here essentially the same arguments it pressed before the Commission. It challenges the Commission’s jurisdiction to modify its agreement with PAS-NY, it asserts that federal antitrust policy is inapplicable in light of PASNY’s status as a political subdivision of New York State, and it contends that the Commission’s order impermissibly requires NYSEG to wheel power to Penn Yan and other municipal utilities. For the reasons set forth below, we reject NYSEG’s jurisdictional and antitrust immunity contentions, but conclude that the Commission’s orders should not have been issued without hearings for the consideration of pertinent factors as set forth in FPA §§ 206, 211 and 212. A. Jurisdiction of the Commission In support of its attack on the Commission’s jurisdiction to review NS-11, NYSEG contends (1) that contracts to which PAS-NY is a party are exempted from Commission review under FPA § 201(f), and (2) that PASNY has exclusive jurisdiction under the NRA to determine the reasonableness of its own contracts. Neither contention is sound. 1. The Federal Power Act The FPA was enacted as Part II, of Title II of the Public Utility Act of 1935, 49 Stat. 847. The two primary purposes of the Act were “to curb abusive practices of public utility companies by bringing them under effective control, and to provide effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce. 49 Stat. 803-804, 847-848; S.Rep.No. 621, 74th Cong., 1st Sess., 3, 7-8; Jersey Central Co. v. FPC, 319 U.S. 61, 67-68, 63 S.Ct. 953, 956, 87 L.Ed. 1258 (1943); see North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945 (1946).” Gulf States Utilities Co. v. FPC, 411 U.S. 747, 758, 93 S.Ct. 1870, 1877, 36 L.Ed.2d 635 (1973). The FPA declares that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation... and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest. § 201,16 U.S.C. § 824(a) (1976). In accordance with this statement of policy, the provisions of the FPA are made applicable “to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce”; the Commission is given “jurisdiction over all facilities for such transmission or sale of electric energy.” § 201(b), 16 U.S.C. § 824(b). In order to facilitate administrative regulation of interstate sales and transmissions, the FPA requires all public utilities to file with the Commission “schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.” § 205(c), 16 U.S.C. § 824d(c) (1976). Any changes in rates, charges, etc., similarly must be filed with the Commission. § 205(d), 16 U.S.C. § 824d(d) (1976). Section 205 of the Act mandates that public utility rates and charges be “just and reasonable,” 16 U.S.C. § 824d(a) (1976), and the Commission is empowered under § 206 to examine the reasonableness of rates, charges and related contracts and to order remedial modifications: Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order. 16 U.S.C. § 824e(a) (1976). A finding that the existing provision is “ ‘unjust, unreasonable, unduly discriminatory or preferential’ ” is a condition precedent to the Commission’s exercise of its power to fix a just and reasonable provision. FPC v. Sierra Pacific Power Co., 350 U.S. 348, 353, 76 S.Ct. 368, 371, 100 L.Ed. 388 (1956). Section 201(f) of the FPA exempts states and their political subdivisions from the provisions of the FPA, as follows: No provision in this subchapter shall apply to, or be deemed to include, the United States, a State or any political subdivision of a State, or any agency, authority, or instrumentality of any one or more of the foregoing, or any corporation which is wholly owned, directly or indirectly, by any one or more of the foregoing, or any officer, agent, or employee of any of the foregoing acting as such in the course of his official duty, unless such provision makes specific reference thereto. 16 U.S.C. § 824(f) (1976). NYSEG argues that this provision, notwithstanding the Commission’s broad powers detailed above, deprives the Commission of jurisdiction to modify any contract involving PASNY. While there is some surface appeal to NYSEG’s argument that modification of an agreement between itself and PASNY is not possible without affecting PASNY, the substance of the Commission’s action negatives the conclusion that the Commission seeks to apply provisions of the FPA to PASNY. The orders challenged do not require PASNY to take or to refrain from taking action; they do not place any limitations on PASNY’s powers or prerogatives. Rather, the Commission’s order is directed strictly to NYSEG, requiring NYSEG to file its contracts with the Commission, and precluding NYSEG from enforcing certain provisions of those contracts. The thrust of the order is that, if PASNY contracts to sell power to Penn Yan for Excell Estates, NY-SEG must provide transmission services for that power under its contract with PASNY if PASNY so requests. PASNY has no greater obligations as a result of the Commission’s order. The present case is thus plainly distinguishable from Northern California Power Agency v. FPC, 514 F.2d 184 (D.C.Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975), the sole case relied upon by NYSEG to support its claim that § 201(f) deprives the Commission of jurisdiction. In that case, the Northern California Power Agency (“NCPA”) filed a complaint with the Commission alleging that contracts between a jurisdictional utility, Pacific Gas & Electric (“PG&E”), and an exempt public agency, Sacramento Municipal Utility District (“SMUD”), were anticompetitive. NCPA sought an order declaring that these contracts were unlawful and could be made lawful only by being amended to provide for an increase in SMUD’s thermal units, with the excess capacity made available to NCPA. The Commission denied NCPA’s request for a hearing on the antitrust implications of the PG&E-SMUD contracts, in part on the ground that it lacked jurisdiction to order the remedy sought. The court of appeals affirmed, noting that “[t]he Commission simply does not possess the authority to order... capacity increases in SMUD’s nuclear plants” and that the clear import of the requested relief would be to require the Commission to do indirectly what it cannot do directly. 514 F.2d at 189. Accordingly, the court concluded that “the Commission’s jurisdictional reasons for not further investigating NCPA’s charges appear well-founded” and that the Commission’s summary disposition of NCPA’s charges was not an abuse of discretion. Id. Here, by contrast, the requested relief does not, either directly or indirectly, affect the amount of power PASNY is required to provide to any purchaser or the amount of transmission service PASNY is required to purchase from NYSEG. The entire burden of the Commission’s order is placed on NY-SEG, over which jurisdiction is clear. Nor do the other cases cited by NYSEG have any bearing on the Commission’s jurisdiction. Both Airco Alloys Division, Airco, Inc. v. Niagara Mohawk Power Corp., 65 A.D.2d 378, 411 N.Y.S.2d 460 (4th Dep’t 1978), and Power Authority of the State of New York v. Federal Energy Regulatory Commission, et al., Civ. No. 79-310 (W.D.N.Y. Feb. 22, 1980), involved a contract between PASNY and Niagara Mohawk Power Corp. entered into in 1961 pursuant to the Niagara Redevelopment Act, 16 U.S.C. § 836(b)(3) (1976). Subsection (b)(3) of that Act requires, as a condition of PAS-NY’s license, that PASNY contract to sell to Niagara Mohawk 445,000 kilowatts of project power “for resale generally to the industries which purchase power produced by [Niagara Mohawk] prior to” June 7, 1956. The subsection was incorporated, as Article 22, in the PASNY-Niagara Mohawk contract. Subsequently, approximately one-fourth of the allocated power was no longer utilized by industries to which it had been allocated prior to 1956, and Niagara Mohawk took the position that this reduced Niagara Mohawk’s obligations pro tanto. PASNY commenced a proceeding before the Commission for a declaration that Niagara Mohawk was contractually required to sell the entire 445,000 kilowatts of power to industries in Western New York. The Commission dismissed the petition for lack of jurisdiction; no appeal was taken. The issues dealt with in the two court cases involved the jurisdiction of the respective courts, not that of the Commission. Thus, in Aireo Alloys v. Niagara Mohawk, supra, the state court rejected an argument that it lacked jurisdiction because 16 U.S.C. § 825p (1976) grants exclusive jurisdiction over violations of the FPA to federal district courts. The court noted that the plaintiff was not claiming a violation of the FPA or the NRA, but rather noncompliance with the PASNY-Niagara Mohawk contract, and that § 825p did not prevent a state court from deciding whether plaintiff’s contractual rights had been violated. Likewise, in PASNY v. Federal Energy Regulatory Commission, supra, there was no allegation of a violation of federal statute, and the federal court held that it lacked jurisdiction simply because the suit was “in essence a declaratory judgment action to clarify the terms of [PASNY’s] contract with Niagara Mohawk.” The question of the Commission’s jurisdiction was not before the district court, since review of the Commission’s dismissal must be sought in a court of appeals rather than in a district court. 16 U.S.C. § 8257(b) (1976). In sum, we have been pointed to no authority, and we know of none, that would deprive the Commission of jurisdiction of the present request by Penn Yan for modification of NYSEG’s contracts based on their alleged conflict with federal law. 2. The Niagara Redevelopment Act NYSEG’s contention that the NRA gives PASNY sole authority to determine what terms and conditions for the wheeling of Niagara Project power are reasonable has no greater force. The NRA, enacted in 1957, “expressly authorized and directed [the Commission] to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara River permitted to be used by international agreement.” 16 U.S.C. § 836(a) (1976). In addition to “those [conditions] deemed necessary and required under the terms of the Federal Power Act,” the Commission was instructed to include in PASNY’s license several provisions, including the following: The licensee shall, if available on reasonable terms and conditions, acquire by purchase or other agreement, the ownership or use of, or if unable to do so, construct such transmission lines as may be necessary to make the power and energy generated at the project available in wholesale quantities for sale on fair and reasonable terms and conditions to privately owned companies, to the preference customers enumerated in paragraph (1) of this subsection, and to the neighboring States in accordance with paragraph (2) of this subsection. 16 U.S.C. § 836(b)(4) (1976) (emphasis added). NYSEG asks us to construe this provision as giving PASNY exclusive authority to determine whether or not its contracts are fair and reasonable, and contends that support for this view may be found in a negative inference to be drawn from NRA § 836(b)(2). Subsection (b)(2) requires that the Commission condition PASNY’s license on PASNY’s making a reasonable portion of Niagara Project power available to neighboring states, and provides that “[i]n the event of disagreement between [PAS-NY] and the power-marketing agencies of any such States, the [Commission] may, after public hearings, determine and fix the applicable portion of power to be made available and the terms applicable thereto.” NYSEG argues that since subsection (b)(2) provides for resolution of disputes thereunder by the Commission, the absence of similar provision under subsection (b)(4) means the Commission has no jurisdiction with regard to a dispute under subsection (b)(4). We find nothing in these or any other sections of the NRA to suggest that PAS-NY has exclusive authority over its contracts involving transmission of Niagara Project power. Section 836(b)(4) does not strip the Commission of the authority or responsibility for assessing the reasonableness of such contracts; its effect is to require PASNY, as a condition of its license, to insure transmission lines for delivery of its power by agreement for use or purchase of such lines or, if such agreements are not available on reasonable terms, to construct the necessary lines. The implication of the mandate to the Commission to impose conditions is that it will be able to enforce those conditions. We do not view the absence from subsection (b)(4) of provision for public hearings such as are required under (b)(2) for power apportionments between states, as implying that the Commission has no jurisdiction to assure that its licensee complies with other conditions of its license. NYSEG’s reliance on Airco Alloys v. Niagara Mohawk, supra, is similarly misplaced. As discussed supra, the New York court there merely upheld its own jurisdiction to decide whether PASNY’s contractual rights were violated. That decision thus has no bearing on the Commission’s jurisdiction to determine the reasonableness, within the meaning of that word under the NRA, of a term included in a PASNY contract. In any event, even assuming that PAS-NY had exclusive authority to decide whether given energy transmission terms available to it are reasonable, the Commission order at issue here would in no way conflict with such authority, since, as discussed in Part 1 above, the Commission’s order does not require PASNY to take, or refrain from taking, any action whatsoever. The only impact of the order upon PASNY is to give PASNY the option of transmitting additional power to Penn Yan over the lines of NYSEG. B. Applicability of Antitrust Policy Having determined that the Commission had jurisdiction to entertain Penn Yan’s petition, we turn to the question whether the Commission’s consideration of the possible anticompetitive nature of provisions of NYSEG’s contract with PASNY was barred because of PASNY’s status as a subdivision of New York State. We conclude that the Commission was free to consider federal antitrust policy as an aspect of the public interest. The purpose of the Commission’s power to identify and remedy unreasonable provisions in utility contracts is “the protection of the public interest, as distinguished from the private interests of the utilities, [as] is evidenced by the recital in § 201 of the Act.... ” FPC v. Sierra Pacific Power Co., supra, 350 U.S. at 355, 76 S.Ct. at 372. The policies underlying federal antitrust law are one aspect of the public interest. Thus, the Commission’s responsibility for protecting the public interest and its corresponding power to adjust unreasonable rates, etc., “carries with it the responsibility to consider, in appropriate circumstances, the anticompetitive effects of regulated aspects of interstate utility operations.” Gulf States Utilities Co. v. FPC, supra, 411 U.S. at 758-59, 93 S.Ct. at 1877-78. Nevertheless, it is evident that in certain circumstances a state will be immune from liability for its imposition of anticompetitive restraints. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court held that federal antitrust laws do not prohibit a state, as sovereign, from imposing anticompetitive restraints “as an act of government.” Id. at 352, 63 S.Ct. at 314. Recent Supreme Court cases identify two criteria for application of Parker immunity: (1) “the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’ ” and (2) “the policy must be ‘actively supervised’ by the State itself.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980), quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (opinion of Brennan, J.). See also New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 412, 58 L.Ed.2d 361 (1978). Even assuming that appropriate circumstances might justify extension of this immunity to conduct by a private party, cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), both of the prerequisites are lacking here. To begin with, there is no articulation whatever of a state policy underlying the challenged provision of NS-11. The fact that a political subdivision of the state is a party to the contract does not transform the provisions of the contract into state policy. Moreover, even if the contract as a whole had been entered into by PASNY as agent of the sovereign in accordance with “clearly articulated and affirmatively expressed” state policy, there is no suggestion that the challenged restraint itself was mandated by, or even related to, state policy. The petition makes clear that the restrictive provision was desired by NYSEG, and there is no hint that it resulted from state policy. Even if the restrictive provision had been suggested by PASNY rather than NYSEG, the Commission would not be precluded from considering antitrust policy since “[i]t is not enough that... anticompetitive conduct is ‘prompted’ by the state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.” Goldfarb v. Virginia State Bar, supra, 421 U.S. at 791, 95 S.Ct. at 2015 (emphasis added). Thus we conclude that PASNY’s status did not preclude the Commission from considering antitrust policy as one aspect of the public interest. This conclusion, however, does not mean that summary disposition was appropriate. The Commission’s determination as to the public interest under § 206 is normally required to be made “after a hearing.” While no hearing is required when there are no material facts in issue, Public Service Co. v. FERC, 600 F.2d 944, 955 (D.C.Cir.), cert. denied, 444 U.S. 990, 100 S.Ct. 520, 62 L.Ed.2d 419 (1979); Municipal Light Bds. v. FPC, 450 F.2d 1341, 1345 (D.C.Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972); Citizens for Allegan County Inc. v. FPC, 414 F.2d 1125, 1128 (D.C.Cir.1969), the limited record here reveals questions relating to the public interest which could best have been resolved after a hearing. It is true, as emphasized by the Commission, that NYSEG’s petition admitted that it preferred not to provide transmission facilities to a competitor for transmission of power to one of NYSEG’s present customers. But NYSEG’s petition also alleged that the challenged contractual restraints were in the public interest as well, and there was no reason for the Commission to assume, as it did, that NYSEG’s self-interest is inherently inconsistent with the public interest. For example, in Lafayette v. Louisiana Power & Light Co., supra, the opinion of the Court discussed the impact on a public utility of loss of customers: The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extraterritorial impact and regional efficiency. 435 U.S. at 404, 98 S.Ct. at 1132 (footnote omitted). Thus, questions as to the probable impact of the proposed modification on NYSEG, the possible inefficiency in duplicating service, the extent, if any, to which NYSEG might be entitled to a “settlement” similar to that contained in the 1962 agreement, etc., should have been considered in assessing the public interest. Both NYSEG and PASNY requested a hearing on Penn Yan’s claims. We do not believe the Commission could properly decide those claims without a hearing. C. The Applicability of Sections 211 and 212 Finally, we turn to NYSEG’s claim that the Commission exceeded its authority because its order modifying NS-11 compels wheeling 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	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Appellant, v. Leroy SORRELL. No. 76-1647. United States Court of Appeals, Third Circuit. Argued Nov. 18, 1976. Reargued En Banc May 12, 1977. Decided Aug. 22, 1977. David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Edward S. G. Dennis, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellant. David A. Garfunkel, Philadelphia, Pa., Douglas Riblet, Defender Ass’n of Philadelphia, for appellee. Argued Nov. 18, 1976 before VAN DUSEN and ALDISERT, Circuit Judges, and BROTMAN, District Judge. Reargued en banc May 12, 1977 before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This is an appeal by the United States from an order of the district court which dismissed an indictment against the defendant because of the Government’s failure to comply with the Interstate Agreement on Detainers, 18 U.S.C.App. p. 230 (1977 Supp.) (the Detainer Agreement). We affirm for the reasons stated below. I. On March 23,1976, an Eastern District of Pennsylvania grand jury returned an indictment against Leroy Sorrell for unlawful possession of a firearm. Sorrell was, at the time of his indictment, in the custody of the Commonwealth of Pennsylvania at the State Correctional Institution at Grater-ford, Pennsylvania, serving a state prison sentence of one to ten years. On March 23, 1976, the district court issued a writ of habeas corpus ad prosequendum, directing the United States Marshal and the Warden of Graterford Prison to produce the defendant at the United States Court House, Philadelphia, on April 2, 1976, for arraignment. On April 2, 1976, the defendant was arraigned at the above United States Court House and then returned to Graterford by the United States Marshal. A second time, on April 19, 1976, Sorrell was brought before the district court for trial pursuant to a writ of habeas corpus ad prosequendum and was returned to Graterford by the United States Marshal after the trial had been continued on the request of defense counsel. Finally, the defendant was removed from state to federal custody for a third time on April 26, 1976, pursuant to such a writ when the case was again scheduled for trial. On this last date, Sorrell filed a motion to dismiss the indictment pursuant to Article IV(e) of the Interstate Agreement on Detainers, 18 U.S.C.App. p. 232 (1977 Supp.); 19 P.S. § 1431 et seq After oral argument on the motion, the district court filed an opinion and order granting the defendant’s motion and dismissing the criminal indictment. The United States appealed from that final judgment. By a November 4, 1976, judgment order, this court affirmed. After the filing of a petition for rehearing en banc on January 11, 1977, the judgment order was vacated by an order filed January 27, 1977, and rehearing en banc was scheduled. II. The basic statutory framework of the Detainer Agreement has been summarized in United States ex rel. Esola v. Groomes, 520 F.2d 830, 833-34 (3d Cir. 1975), and need not be described here. See also United States v. Ford, 550 F.2d 732, 737-41 (2d Cir. 1977). However, the legislative purpose in adopting this statute is specifically set forth in Article I, which is designed “[t]o implement the right to a speedy trial and to minimize the interference with a prisoner’s treatment and rehabilitation,” Esola, supra at 833, as follows: “The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, while emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.” 18 U.S.C.App. p. 230 (1977 Supp.). III. An issue in this case is whether a writ of habeas corpus ad prosequendum under 28 U.S.C. § 2241(c)(5) is a “detainer” within the meaning of that term as used in the Detainer Agreement. The legislative history of P.L. 91-538 (Act of December 9, 1970, 84 Stat. 1397), adopting the Detainer Agreement, makes clear that Congress intended the word “detainer” to mean any notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction. Each Form Order constituting the writ of habeas corpus ad prosequendum was clearly a notification that the defendant was wanted to face a criminal charge in the United States District Court for the Eastern District of Pennsylvania. In Esola, supra, this court said at pages 836 and 838: “First, the appellee contends that the five transfers in this case were pursuant to writs of habeas corpus ad prosequendum issued by a state court and honored as a matter of comity, by the Federal Bureau of Prisons. Since the request was not made pursuant to Article IV of the Agreement, it is argued that the remedial provisions could not be relevant. . “The word ‘detainer,’ as it is used in the Agreement, is ‘a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.’ See Senate Report 91-1356, 91st Cong., 2d. Sess., 2 U.S. Code Cong. & Admin. News, 1970, p. 4865. This definition of a detainer from the Senate Report finds support in the other legislative history of the Agreement and is consistent with the purposes of the Agreement. “Although the legislative history of the federal enactment of the Agreement is not voluminous, perhaps because there was apparently no opposition to it in either the House of Representatives or Senate, the remarks of Representative Kastenmeier upon introduction of the bill make Clear that he considered a detainer to be simply a notice filed with the confining institution that criminal charges from another jurisdiction were outstanding and that the prisoner was wanted in order to stand trial on those charges. 116 Cong.Rec. 13999 (remarks of Rep. Kastenmeier). The Committee Reports of both the House Judiciary Committee and the Senate Judiciary Committee follow Rep. Kastenmeier’s language almost verbatim. Our holding that the first two writs of habeas corpus ad prosequendum (see page 229) were “detainers” under the Detainer Agreement is supported by United States v. Mauro, 544 F.2d 588 (2d Cir. 1976); see also United States v. Ford, supra at 736-37; but cf. Ridgeway v. United States, 558 F.2d 357 (6th Cir., 1977); United States v. Chico, Opinion of June 20, 1977, 558 F.2d 1047 (2d Cir. No. 939, Sept. Term 1976, Docket No. 77-1016. Scallion, supra, may be distinguished factually, while Mauro is substantially identic to this case and the result there parallels the result we reach here. The dissenting opinion of Judges Adams, Rosenn and Weis complains that the effect of the legislative history of the Detainer Agreement, as adopted by Congress in 1970 (see pages 230-231), is “to cut back on” or restrict the “availability of” the writ specified in 28 U.S.C. § 2241(a) and (c)(5), which has been authorized since the 18th Century. But the Detainer Agreement only provides certain consequences which follow the use of such writ and it remains fully available to the courts. Congress is free to amend P.L. 91-538 by including a definition of “detainer” which would exclude the writ provided for in 28 U.S.C. § 2241(a) and (c)(5) just as it added to the previous language of the Detainer Agreement the definitions in 18 U.S.C.App. §§ 3 and 4 when P.L. 91-538 was adopted in 1970. We cannot agree with Judge Garth’s statement, 562 F.2d at page 239 of his separate opinion that “there are probably hundreds of federal prisoners, parolees, and probationers who will be eligible to have their federal convictions vacated under the majority’s interpretation of the Agreement .” (Emphasis supplied.) Since this issue involves statutory interpretation of Congressional wording designed to require speedy criminal trials, there seems little justification for retroactive application of the statutory construction ultimately adopted, through collateral attack, where the defendant-prisoner has not requested a speedy trial prior to the trial. See for example Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); U. S. ex rel. Cannon v. Johnson, 536 F.2d 1013, 1015 — 16 (3d Cir. 1976). The reference in note 2 of Judge Weis’ separate opinion to a 1975 report of the Senate Judiciary Committee concerning completely separate proposed legislation introduced into Congress in that year but never enacted is “a hazardous basis for inferring the intent of an earlier [Congress]”, Benevento v. United States, 461 F.2d 1316, 1322, 198 Ct.Cl. 772 (1972). Similarly, the citation in note 5 of that separate opinion to a definition of “detainers” in a Handbook of the Council of State Governments written in 1949 seems to be of little relevance in interpreting a 1970 Act of Congress. See pages 230-231, setting forth the legislative history of the 1970 Detainer Agreement with which we are concerned. Also, the separate opinion of Judge Garth speculates, from the absence of legislative history, that Congress did not mean what the words of Article IV(e) of the Detainer Agreement (above at note 4) provide, which policy is contrary to the position of Professor Leflar quoted in Aldisert, “The Judicial Process,” at 177,180 (1976). As pointed out above in the last paragraph of note 3, compliance with the terms of Article IV(e) of the Detainer Agreement has been worked out in the Eastern District of Pennsylvania by transfer of custody from state to federal authorities without doing violence to the language of Congress. IV. As noted under part II above, by adopting the Detainer Agreement in 1970, Congress intended its provisions to apply whenever a detainer had been lodged with a state jurisdiction by the Federal Government. Also, we note that by returning Sorrell to Graterford Prison, his ability to consult with counsel was impeded, which had the potential concomitant effect of impairing his constitutional right to a speedy trial. Interference with the right to a speedy trial is inconsistent with the remedial purposes and plain statutory language of the Detainer Agreement. An order will be entered affirming the judgment of the district court. . Sorrell was indicted for violations of 26 U.S.C. § 5861(d), (i), for possession of an unregistered 12-gauge shotgun, having no serial number and a barrel length of 12 inches. The offenses alleged occurred on or about December 29, 1974. Sorrell was indicted for these offenses by the state, but the indictment was subsequently dismissed for failure to comply with Pa.R.Crim.P. 1100 (180-day trial rule). Although not entirely clear from the record, it appears that the federal indictment was returned subsequent to the dismissal of the state prosecution because of the state speedy trial problem. . Sorrell’s appearances before the United States District Court on April 2, April 19 and April 26, 1976, were compelled pursuant to 28 U.S.C. § 2241(a) and (c)(5), which provide in pertinent part: “§ 2241. Power to grant writ (a) Writs of habeas corpus may be granted by . . . the district courts . . . within their respective jurisdictions. . . . “(c) The writ of habeas corpus shall not extend to a prisoner unless— “(5) It is necessary to bring him into court to testify or for trial.” The service of an order under the above section of Title 28 is fully executed when the custody of the prisoner is changed from the state to the United States. The provision for a writ of habeas corpus ad prosequendum has existed in the Acts of Congress ever since the Judiciary Act of 1791, so that Congress, when it adopted the Detainer Agreement, was well aware of this provision as a means for producing a prisoner from the state jurisdiction to the federal courts to respond to federal criminal charges. The wording in each of the writs was substantially the same with the only differences appearing in the dates, the description of the proceeding (arraignment or trial), and the judicial officer before whom the defendant was ordered to appear. The form writ for the April 2 appearance is reproduced in note 6 below. . Because no federal detention facility exists in the Eastern District of Pennsylvania, federal prisoners awaiting trial at the Philadelphia U.S. Court House are housed in these state facilities in the nearby area, pursuant to a contract between federal and state authorities (see 18 U.S.C. § 4002; e. g„ appendix at A-31 — A-35 in United States v. Thompson, 562 F.2d 232 (3d Cir., No. 76-1976), also decided this day): Philadelphia Detention Center (Philadelphia) Berks County Prison at Reading (80 miles from the Philadelphia U.S. Court House) Delaware County Prison (25 miles from the Philadelphia U.S. Court House) Chester County Prison (35 miles from the Philadelphia U.S. Court House) Holmesburg Prison (Philadelphia) House of Correction (Philadelphia) The Graterford Prison is 35 miles from the Philadelphia U.S. Court House and there is not regularly available transportation to and from the Philadelphia U.S. Court House to that institution, whereas there is such transportation from the above-listed prisons where federal prisoners are normally kept. Thus, if Sorrell had been under federal custody in the Philadelphia Detention Center or any of the other prisons listed above, he would have been more available to his counsel because he could have been brought in by a Marshal’s car bringing other federal prisoners to the Philadelphia U.S. Court House. By being kept in state custody at Graterford, his counsel had to consult with him at a location where public transportation is not as readily available as it is to the other prisons listed above. This last point was raised by counsel at oral argument before the three-judge panel as well as the en banc court, with the suggestion that the difficulty engendered in gaining access to the defendant because of the above-described complications significantly impaired the ability of counsel to consult with the defendant in preparation for trial and the development of the defense. At the en banc argument, in response to a question from the panel, it was stated that since the time of the decision of the three-judge panel in this case, affirming the dismissal of the district court, the United States Attorney’s Office for the Eastern District of Pennsylvania has been adhering to the mandates of the Detainer Agreement by retaining federal custody over prisoners until they can be tried. No suggestion has been made to this court that these procedures have impaired the efficient administration of the United States Attorney’s responsibilities in any way. . Article IV(e) of the Detainer Agreement, 18 U.S.C.App. p. 232 (1977 Supp.), provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” . United States v. Sorrell, 413 F.Supp. 138 (E.D.Pa.1976). . The first such order, which was filed March 24, 1976 (Doc. 3 in United States v. Sorrell, Crim. No. 76-165, E.D.Pa.), contained this language: “AND NOW, this 23rd day of March, 1976, it is hereby ORDERED, ADJUDGED AND DECREED that the Warden of Graterford Prison and the United States Marshal(s) for the Eastern District of Pa. produce before this Court the body of Leroy Sorrell on Friday, April, 2, 1976 at 10:00 A.M. before the Honorable Peter B. Scuderi in Courtroom No. 3, 4th Floor to appear for Arraignment in the above-captioned matter, and that immediately upon the termination of the said proceedings, the said defendant be delivered into the custody of the said superintendent of the said institution.” Insofar as United States v. Scallion, 548 F.2d 1168, 1173 (5th Cir. 1977), holds that “ ‘detain-er’ for purposes of the Act does not include a writ of habeas corpus ad prosequendum issued by a federal district court”, we decline to follow it on the facts of this case. The lodging on March 26, 1976, of a written document denominated a “Detainer” with the Warden at Graterford (A6-A7), after the issuance of the above writ of habeas corpus ad prosequendum had been signed on March 23 and filed on March 24, did not alter the effect of the March 23 writ as both a detainer and “a written request for temporary custody or availability” under Article IV(a) of the Detainer Agreement. 18 U.S.C.App. p. 232 (1977 Supp.). Rep. Kastenmeier stated: ‘For the purpose of this legislation ... a detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to stand trial on pending criminal charges in another jurisdiction.’ 116 Cong. Rec. 13999 (May 4, 1970).” . The approach of Chico, supra at page 1049, would frustrate the purpose of securing a speedy trial through requiring litigation and adjudication in each case of the issue of whether the actions of the receiving state conform not only to the language of the Detainer Agreement but also to its policies and purposes. We recognize that Congress should harmonize the time periods provided for in the Speedy Trial Act and the time requirements of the Detainer Agreement. Compare 18 U.S.C. § 3161 with 18 U.S.C.App. Article IV(c). . Also under the principles governing retroactive applications applied in civil cases as set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1972), relied on in note 1 of Judge Garth’s opinion, it would appear that this issue can well be considered as “an issue of first impression whose resolution was not clearly foreshadowed”. . See Sutherland, Statutory Construction (4th ed.), § 48.11 at page 213, where the author states: “Statements from other nonofficial sources having no special connection with the preparation and proposal of a bill are not generally considered for interpretation purposes.” . It is clear that the Detainer Agreement applies to the United States as a “Receiving State.” In Scallion, supra, the court said at page 1174 of 548 F.2d: “The Government also argues that when Congress enacted the Act it intended to cast the United States in the role of a ‘Sending State’ and not a ‘Receiving State’ under the Agreement in recognition of the existing power to obtain custody of state prisoners by the use of the writ of habeas corpus ad prosequendum. We are unable to detect such intent. Article II provides that ‘State’ as used in the Agreement includes the United States of America. To the extent that the United States makes use of a detainer, it is a ‘Receiving State’ subject to the terms of the Agreement”. Accord, United States v. Mauro, supra at 593-95. . See, e. g., II at pages 229-230; Esola, supra at 833 & note 7; accord, Mauro at 590-91. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_district	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". TECHNICAL TAPE CORPORATION, Plaintiff-Appellant, v. MINNESOTA MINING & MANUFACTURING COMPANY, Defendant-Appellee. No. 337, Docket 24207. United States Court of Appeals Second Circuit. Argued April 12,1957. Decided Aug. 2, 1957. Mandate Recalled Nov. 8, 1957. See 249 F.2d 1. Daniel L. Morris, Curtis, Morris & Safford, New York City (Simon H. Rifkind, Samuel J. Silverman, Edward N. Costikyan, Emanuel E. Sternfield, Robert D. Spille and John A. Mitchell, New York City, of counsel), for plaintiff-appellant. H. H. Hamilton, New York City (Harold J. Kinney and Robert I. Coulter, St. Paul, Minn., M. K. Hobbs, Platteville, Wis., and Edward A. Haight and J. W. Hofeldt, Chicago, 111., of counsel), for appellee. Before MEDINA and WATERMAN, Circuit Judges, and LEIBELL, District Judge. LEIBELL, District Judge. Plaintiff instituted this action on November 17, 1951, under the Declaratory Judgment Act (28 U.S.C. § 2201) to have the defendant’s patent No. 2,177,627, issued to Richard Drew October 31, 1939 declared invalid, or, if valid, then not infringed. On a motion in the District Court the complaint was dismissed on the grounds that no justiciable controversy was stated upon which a claim for relief could be founded and that the court lacked jurisdiction. On appeal, this court (200 F.2d 876) reversed and held that an amendment to the complaint in the interest of clarity, should be allowed. Then followed various procedural steps, resulting in an amended complaint, a supplemental complaint, the defendant’s answer and plaintiff’s reply. In its answer Minnesota set up a counterclaim for an injunction against further infringement of its patent by plaintiff, and for damages. Plaintiff’s reply charged a misuse by defendant of its patent, in that defendant allegedly attempted to extend its patent monopoly to cover unpatented products, that defendant illegally restrained competition, and for those reasons a court of equity should not grant defendant any relief on its counterclaim. The trial of this case before Judge Bicks took five weeks. On July 18, 1956, he filed his opinion (143 F.Supp. 429) and on July 26th signed a judgment. The judgment declared that (a) all of the sixteen claims of the Drew patent are valid “except claim 9 as to which no adjudication of validity is made, no infringement of said claim having been found”; that (b) the plaintiff had infringed all the claims of the patent (except claim 9); that (c) defendant had not been guilty of inequitable conduct and was not barred from enforcing the patent; that (d) an injunction should issue enjoining and restraining the plaintiff from making or selling any transparent or colored non-fibrous, film-backed pressure-sentitive tape or sheeting embodying the invention of Letters Patent No. 2,177,627; that (e) defendant recover of the plaintiff the damages which defendant had sustained by reason of the aforesaid infringement; and that (f) plaintiff’s complaint, amended complaint and supplemental complaint be dismissed with costs. The patent expired October 31, 1956. Plaintiff-appellant has filed a substantial bond for any damages ultimately awarded. On this appeal Technical Tape contends (1) that there was no “invention” in what Drew did (Drew II patent, No. 2.177.627) ; (2) that there was no novelty in what Drew did because other patents anticipated Drew; (3) that plaintiff, Technical Tape, did not infringe the Drew II patent; (4) that Minnesota has abused whatever patent rights it may have had and is entitled to no relief. Every judge before whom the validity of the Drew II patent (No. 2,-177.627) was litigated in the District Court (Judges Barnes and Campbell in the Northern District of Illinois and Judge Bicks in the Southern District of New York) has held the Drew II patent valid. Judge Sparks and Judge Min-ton of the United States Court of Appeals (7th Cir.) and Judge Baltzell, a District Judge who sat with them and heard the appeals from the judgments entered on the decisions of Judge Barnes upheld the validity of the Drew II patent (159 F.2d 554). We have considered the evidence in this case on the issue of validity and we are convinced that Judge Bicks’ finding of invention and validity should be sustained. Judge Barnes in Minnesota Mining & Mfg. Co. v. Pax Plastics Corp., D.C., 65 F.Supp. 303, 306, summarizes the salient features of the Drew II patent, as follows: “The claims in suit are drawn to a new kind of adhesive sheet or tape having a field of utility not possessed by any prior adhesive tape of any kind. Whether transparent or colored, and whether involving a primer or not, this tape is stably and agressively tacky and seals instantly on contact with almost any surface,, without moistening or heating. The backing is a thin transparent film having smooth, glassy surfaces, such as cellophane. Both the colored and transparent types have been widely used for sealing packages. The colored type provides an attractive ■decorative seal for packages and has also been widely used as a coding tape for wires and tubes. The adhesive contains coloring material visible through the transparent film backing and produces the optical illusion that the backing film is colored, thus causing the back surface of the tape to have a lustrous colored appearance. The backing film protects the colored stratum from becoming smeared or dirty in use of the tape, and provides a back surface to which dirt does not readily cling. The transparent type of tape provides an ‘invisible’ sealing, mending and holding tape widely used for sealing packages, mending books, records, maps and charts, and fastening posters on windows and bulletin boards. Both types of tape have many other uses.” The patent in suit is not invalid on the grounds that it is an aggregation of components that were old. Plaintiff contends that cellophane sheets were old and so was the use of rubber, resin, and rubber-resin adhesive; and that plaintiff’s patent is simply an aggregation of the two. Plaintiff’s premise does not fully state the facts and its conclusion is not correct. Defendant’s aggregation of old elements produced a “new quality” and “function,” and a new article. It contributed something not had before. It added “to the sum of useful knowledge.” It required “more than ordinary mechanical skill” to produce it. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, at pages 151 and 152, 71 S.Ct. 127, at page 130, 95 L.Ed. 162. A novel combination of old elements which cooperate with each other so as to produce a new and useful result is patentable. Weller Mfg. Co. v. Wen Products, Inc., 7 Cir., 231 F.2d 795, 798; Brown v. Brock, 4 Cir., 240 F.2d 723, 726; Zonolite Co. v. United States, Ct.Cl., 149 F.Supp. 953, 955. It is defendant’s contention that Drew was the first to produce film backed, normally tacky, pressure-sensitive and water-insoluble adhesive sheets and tape, all of which is clearly and fairly defined in the specifications and claims of the Drew II patent. The specifications of the Drew II patent use the words “adhesive sheets or tapes” in the first paragraph and many times thereafter, although the claims refer to adhesive sheets. The adhesive sheets of the Drew patent claims could be of any width, such as tape size material. That Drew’s patent involved invention is established in several ways. It had been sought by expert chemists of the DuPont Co. and of Johnson & Johnson, for a number of years, unsuccessfully. Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034; Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177. In his own experiments Drew stumbled upon it. Of course, after Drew’s discovery it all seemed simple. With Drew’s patent to point the way, infringing competitors would claim that it was so obvious that there really was nothing to it; that it did not require anything but mechanical skill and the use of known materials. But the demand had long existed; skilled men had sought to meet the demand without success. Inland Mfg. Co. v. American Wood Rim Co., 6 Cir., 14 F.2d 657, 659. In the recent case of Rohm & Haas Co. v. Roberts Chemicals, Inc., 245 F.2d 562 the Court of Appeals for the Fourth Circuit in reversing a District Judge’s holding, 142 F.Supp. 499, that the patent in suit before him was invalid for anticipation, stated: “Since Hester tried and succeeded where Tisdale and the duPont Company tried and failed, we may fairly conclude that the discovery was not obvious to persons skilled in the art.” The phenomenal success of the Scotch tape produced by the defendant under Drew’s patent is not to be overlooked in considering the question of invention. The Seventh Circuit called it “quite astonishing.” Drew had hit upon something that was useful in many industries in packaging and sealing their products. Although commercial success is not decisive on the issue of invention it is a factor that should not be ignored. Wahl Clipper Corp. v. Andis Clipper Co., 7 Cir., 66 F.2d 162, 165. In considering the issue of invention and “how far beyond commonplace contriving was the foresight necessary to think out the combination,” the courts find it enlightening to resort to “the history of what went before, the duration of the period during which the invention was needed but failed to appear and its acceptance when it did.” L. Hand, J., in Landis Mach. Co. v. Parker-Kalon Corp., 2 Cir., 190 F.2d 543, 546. “Substantially all inventions are for the combination of old elements; what counts is the selection, out of all their possible permutations, of that new combination which will be servicable.” Safety Car Heating & Lighting Co. v. General Electric Co., 2 Cir., 155 F.2d 937, 939. The prior art on which plaintiff-appellant relies on this appeal as anticipating Drew II patent will now be discussed. Plaintiff points to the Brandenberger French patent (No. 433,999, 1912,) as an example of the prior art that anticipated Drew. Brandenberger’s French patent stated: “The (cellulose) sheets can be bonded by means of any adhesive substance, but, in order to increase their electrical resistance, they can be coated first with linseed oil, a solution of rubber or any insulating varnish. These coatings or varnishes can themselves serve as adhesives.” Brandenberger, while a technical adviser of DuPont, never suggested that his French patent of 1912 would give DuPont the answer to its problem of getting a proper sealing medium for its cellophane. If any of his patents had anticipated Drew, and if Drew merely made such advances over Brandenberger as anyone skilled in the art could have made, it is surprising that Brandenberger did not accomplish this himself. No one was in a better position to do so with his years of experience and all the research resources of DuPont within his reach. The Kronstein patent (No. 1,944,562) was not mentioned in the opinion of the Seventh Circuit (159 F.2d 554), but it was later considered by Judge Campbell in the Neisner Bros. Inc. case (Minnesota Mining & Mfg. Co. v. Neisner Bros., D.C., 122 F.Supp. 752, 754). He noted the similarity between the Brandenberger French patent No. 433,999 and the Kronstein patent and found that it did not anticipate Drew II. The Brandenberger French patent was intended to increase the insulation feature of cellulose sheets when bonded together by an adhesive substance, which also filled the pores of the sheets. That Kronstein’s ideas were quite similar to Brandenberger’s is not disputed. Both dealt with the use of cellophane as an electrical insulation with an adhesive coating. Judge Campbell pointed out that the “problems which confronted Kronstein and Brandenberger were not the same as those which confronted Drew, and their inventions were designed for correspondingly different uses.” In the case at bar, the trial judge considered the Kronstein patent and quoted in a footnote to his opinion the finding of Judge Barnes in the Pax case (65 F. Supp. 303) as to the Kronstein patent for an electrical insulating band or ribbon. Neither the French Brandenberger patent nor the Kronstein patent anticipated the Drew II patent. Plaintiff-appellant argues that the Hodgson patent No. 1,467,108 disclosed the subject matter of the Drew II patent and observes that it is not discussed in the opinion of the District Court in this case. But the District Judge stated in his opinion that he had examined the patents referred to as prior art and compared each with the patent in suit and that the Drew patent is sufficiently distinguished from them. The Hodgson patent is for a “dental film mount” and was issued September 4, 1923. It states that “This invention relates to mounts for photographic films and particularly to mounts adapted to hold small dental Rontgenographic negatives so that they may be examined by transmitted light, and so that they may be readily filed.” The mount has a window and the film, which is larger than the window opening, is attached to the back of the mount by an adhesive substance. The adhesive is referred to as a “slow-drying adhesive, the desired characteristic being that the adhesive shall remain ‘tacky’ for a very considerable length of time.” The Hodgson patent also states that “While the particular composition of the adhesive is not of importance, it is preferably a composition of rubber and coal tar pitch with any suitable softener such as benzol, gasoline or chloroform.” The patent describes and shows the mount as consisting of two parts. The face sheet is an opaque fabric with an opening in it. The rear sheet is of opaque paper, with an opening in it slightly larger than the face sheet, so that a small margin of the face sheet is exposed all around the rear sheet, when covered by the face sheet. An adhesive is applied to all of the back of the face sheet and when the rear sheet is applied to the face sheet, it will stick to it and at the same time leave a small margin of the rear of the face sheet, with the adhesive thereon, exposed around the opening. The negative may be pressed down from the rear around the aperture against the exposed small margin of the front sheet with the adhesive thereon, and is thus held in place — “but should it be desirable for any reason to remove the negative this can be done since it can be stripped from the adhesive without injury to its diagnostic value.” That is so because the picture on the film is so centered that it does not reach to the outer parts of the film which were applied to the exposed adhesive part of the mount. What happens to the adhesive when the film is removed? Does some of it detach itself from the paper mount and adhere to the film? Does all the adhesive remain on the paper mount? Does all of it attach itself to the film? The patent is silent as to that. And Mr. Shalita, in explaining the Hodgson patent for the plaintiff, admitted that it did not say that the adhesive was non-offsetting or transparent. The Hodgson patent in no way anticipated the Drew II patent. It does not teach what the Drew II patent taught, nor does it claim anything like what is claimed in the Drew II patent. A comparison of the claims of the two patents proves that absolutely. Plaintiff complains that defendant’s main answer to the Hodgson patent is to scoff at it. The fact is that in all the cases in the District Courts in which Hodgson has been cited as anticipating Drew II, it has been ignored by the courts, as not worthy of any discussion. The Seventh Circuit found no merit in the contention that Hodgson’s patent anticipated the Drew II patent. And as defendant’s counsel herein remarks “there is no evidence that anyone was ever inspired by it to conceive of Drew’s entirely different product.” We agree with the conclusion of the Seventh Circuit that the Hodgson patent did not in any way anticipate the disclosures of the claims in suit. A basic difference between the Drew I patent (No. 1,760,820) and the Drew II patent (No. 2,177,627) is that the former applied an adhesive to a porous backing such as “paper or similar fabric material,” while the latter applied an adhesive to a non-fibrous film backing. Drew I also refers to a “unified cellulosic backing” which is defined as meaning “to include a web of fabric comprising paper chosen from the materials herein described including gelatinized eellulosic sheets such as parchmentized paper” and various other types of paper, treated with various compositions. Parchmentized paper is not transparent; and it is not non-fibrous or non-porous. No one of the six claims of the Drew I patent mentions a “film backing.” In Drew II the term “film backing” is used in all the claims except 9 and 10. Claim 9 uses the expression “regenerated cellulose film,” and Claim 10 a “non-fibrous film.” That plaintiff infringed the Drew II patent is clear from the supplemental complaint [paragraph 8(c)] and the Agreed Statement (Ex. B) [paragraphs 5(a), (b), (c) and 9]. The use of a primer is included in Claims 10, 11 and 16 of the Drew II patent. But the use of a primer is not essential to producing a satisfactory tape under the other claims of the patent (except Claim 9, not relied on by defendant). The exception mentioned in paragraph 9 of the Agreed Statement limited that admission to the use by plaintiff, in one of its tapes, of an adhesive coating “prepared from polyvinyl ether rather than rubber and resin.” The latter is a second type of accused tape, which used an adhesive very similar to that which Judge Campbell had before him in the Neiser case (101 F.Supp. 926, and 122 F.Supp. 752, 754). Even if the equivalent plaintiff used was unknown at the time of Drew’s invention, it was none the less an equivalent and infringed — Finkelstein v. S. H. Kress & Co., 2 Cir., 113 F.2d 431, 433. The substitute functions in the same way as the original and produces the same result. Judge Barnes had decided the suits of Minnesota against Freydberg and against Bulkley in Minnesota’s favor on March 30, 1946, D.C., 65 F.Supp. 303, affirmed 7 Cir., 159 F.2d 554 on January 9, 1947. The tape they sold as Illinois distributors of Cofax was made by Cofax, a New York corporation. The plaintiff, Technical Tape Corporation, a Delaware corporation, was organized in 1947, with a place of business in New York City. In August or September 1947 plaintiff hired Shalita, who had worked for Cofax from 1942 to early 1946 and then for another concern. Shalita became a director and Vice-President of plaintiff. Mr. Cohen, the President of Technical, testified that plaintiff leased a factory in October 1947 and began production in the late Spring of 1948. At first plaintiff produced paper backed and cloth tapes, like the masking tape'of the Drew I patent, which had expired on May 27, 1947. Later it also manufactured cellophane backed tapes and tapes having backings with non-fibrous surfaces. According to the supplemental complaint, at least as early as 1950, plaintiff was preparing to manufacture film backed pressure-sensitive adhesive tape and had requested in writing a license from defendant which was refused in September and October 1950. It also appears that as early as October 1950 plaintiff had had a Canadian affiliate manufacturing the said tape upon instruction of plaintiff and that plaintiff had imported the tape from Canada. Also, according to the supplemental complaint plaintiff, itself, has manufactured cellophane backed pressure-sensitive adhesive tape of the kind defendant charged was being manufactured and sold by plaintiff in infringement of Drew II patent, No. 2,177,267, since as early as about May 1951 and had sold such tape in the United States since prior to November 17, 1951. Plaintiff’s infringement of defendant’s patent was deliberate. When he was seeking a license from Minnesota the plaintiff’s president declared he would make a pressure-sensitive adhesive tape whether or not he got the license. He read the Drew II patent a hundred times. He persuaded Beyer, an employee of Minnesota’s, a quality control man who had access to and understood Minnesota’s ‘standard books’ which were in code, to enter plaintiff’s employ in May 1951 and to head plaintiff’s quality control department; and he advised Beyer to keep from his employer (Minnesota) the fact that he was to enter plaintiff’s employ. He hired an expert, Shalita, who had made an infringing tape for Cofax Corporation. That was the tape involved in Minnesota’s suit against Freydberg, and its suit against Bulkley, heard by Judge Barnes who held that the Cofax tape infringed Minnesota’s tape. The judgments were affirmed in 159 F.2d 554. Shalita had made tapes from the Drew patent examples. With that group around him, the president of the plaintiff-appellant herein, finally made a tape which was so similar to Minnesota’s in every respect that at the trial even he could not tell the one from the other, without an identifying name on the core. The Technical Tape Corporation was a willful infringer. Colgate-Palmolive Co. v. Carter Products, 4 Cir., 230 F.2d 855. Defendant’s Alleged “Misuse” of the Drew II Patent As a special defense to defendant’s counterclaim for patent infringement, plaintiff charges that the defendant has “misused” the Drew II patent (No. 2,-177,627), and does not come into court with clean hands; and therefore asks that defendant be denied any relief on its counterclaim. Plaintiff contends that 3M abused its patent monopoly on transparent adhesive tape (Drew II patent) in two ways: (1) by selling its transparent adhesive tape on the condition that the purchaser thereof buy other 3M tape not covered by the patent in suit (citing Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 315 U.S. 788, 62 S.Ct. 402, 86 L.Ed. 363); and (2) by selling its patented transparent adhesive tape on the condition that the purchaser thereof refrain from buying other adhesive tape products, not covered by the patent in suit, from any other manufacturer (citing F. C. Russell Company v. Consumers Insulation Company, 3 Cir., 226 F.2d 373). To support the charge of “misuse” plaintiff took the depositions of six distributors, and at the trial produced oral testimony of a seventh distributor, and his wife. The seven distributors are:' Lloyd’s Office Supply of Pawtucket, Rhode Island (an Industrial Tape Division account); Edwards Paper Company of Roxbury, Massachusetts (an Industrial Tape Division account); Southern Stamp and Stationery Company of Richmond, Virginia (an Industrial Tape Division account); Cammaek Office Supply of Burlington, North Carolina (a Wholesale-Retail Tape Division account); Anchor Office Supply Company of Cleveland, Ohio (a Wholesale-Retail Tape Division account) ; Crown Office Supply Company of Chicago, Illinois (a Wholesale-Retail Tape Division account); and Aviation Service Supply Company of Denver, Colorado (an Automotive Tape Division account). Plaintiff also examined before trial A1 Drew, defendant’s New England District Sales Director of its Industrial Sales Division. Both sides read parts of Drew’s deposition into the record of the trial. All the depositions were received as exhibits. The defendant rebutted the charge of misuse, by the cross-examination of the distributors whose depositions were taken, by the cross-examination of the Arnolds, by using parts of the deposition of A1 Drew, by testimony of Charles C. Smith, General Manager of the defendant’s Cellophane Tape Division for the Wholesale-Retail trade, and by testimony of John J. Bennison, the Eastern Regional Sales Manager for the Industrial Trade Division of defendant. Concerning the seven distributors, the trial judge stated in his opinion: “The situation with respect to each of these seven distributors has been considered and the Court is satisfied that the conduct of 3M (the defendant) in each instance was motivated solely by honest business considerations in no wise related to an attempt to extend the monopoly of the Drew Patent.” A jobber who resorted to the disparagement of defendant’s products in order to substitute other and cheaper brands of tape, including infringing brands of tape, where the customer wanted defendant’s tapes; a jobber who did not deal fairly with defendant’s products in displaying and selling them; a jobber who was more interested in pushing the sales of competitors’ products to the detriment of defendant’s products; a jobber with only a few customers, who made no effort to sell defendant’s products ; a jobber who faked so called “drop shipment” orders to mislead the defendant and thus gain a larger discount; a jobber who was habitually delinquent in paying his bills — jobbers who did any of those things were not desirable distributors of defendant’s products and defendant was not required to continue them as distributors. A “drop shipment” order called for direct shipment of 3M’s products to the jobber’s customer. The jobber would receive a trade discount on such orders, because as a rule they were large and saved 3M warehousing expense. Some jobbers submitted fictitious orders and thereafter picked up the goods themselves to be utilized as stock inventory, thereby receiving a trade discount which was not given on purchases by jobbers for their own stock inventory. The so-called “select distributorship policy” concerning which A1 Drew was exammed, was developed by the Industrial Tape Division about mid-summer of 1953. It did not apply to any other tape division of the 3M organization. Two of the five distributors (Aviation and Crown), alleged to have been cut off because of their refusal to agree to the select distributorship policy, were not industrial jobbers within the jurisdiction of 3M’s Industrial Tape Division. As to the three remaining, Southern was cut off from 3M’s tape products in December of 1953 for reasons stated herein in footnote 7. There is nothing in the testimony to support plaintiff’s contention that Southern was cut off because it refused to accept the so-called “select distributorship policy.” Likewise there was no connection between Edwards being cut off as a 3M distributor and the select distributorship policy of the 3M Industrial Tape Division. Edwards was cut off for other reasons, as indicated in footnote 7, some four or five months prior to the time the “select distributorship policy” was proposed by 3M’s Industrial Tape Division. The testimony of Arnold and his wife (Lloyd’s Office Supply Co.) that in September of 1953 he was informed that 3M had a new company policy and that under such policy Lloyd, if it wished to continue selling 3M tape would have to agree to shop selling Technical Tape, and that when he refused he was cut off, was inconsistent with the testimony of A1 Drew, who denied that any proposal of select distributorship was made to Lloyd’s Office Supply Company, and was inconsistent with the testimony of Bennison and Smith, witnesses at the trial, who testified that 3M does not have a sales policy requiring a jobber or distributor to sell only 3M tape and to refrain from selling other competitive brands. Apparently the trial judge accepted the testimony of Messrs. Bennison and Smith, which he had a right to dp. He saw and heard the witnesses in question. As stated in International Bureau v. Bethlehem Steel Co., 2 Cir., 192 F.2d 304, 306: “It is a familiar principle that on appeal in cases tried by the court without a jury findings of fact will be given effect unless shown to be clearly erroneous. [Citing cases.] And, indeed, that principle, together with the correlative one that due regard be given to the opportunity of a trial judge in a non-jury case to determine the credibility of witnesses who appear and testify before him, is firmly embodied in Rule 52(a) F.R.C.P., 28 U.S.C.A.” The trial judge did not specifically discuss A1 Drew’s testimony in his opinion, but he did state (as a finding of fact based on the evidence) that defendant distributes its products through upwards of 30,000 outlets, including 6,000 paper wholesalers and 4,000 commercial stationers; that many thousands of defendant’s distributors and jobbers handle competitive tapes and that “3M” (Minnesota) has never required either that they handle its tapes exclusively; or that as a condition of buying one type of 3M tape, that they should also buy another. The trial record on the issue of the so-called “select distributorship policy” proposal, shows that the proposal was made only to certain jobbers or distributors, who were thought to be qualified and not to all the jobbers served by 3M’s Industrial Tape Division; that the proposal was not made on any either-or basis, i. e. that if rejected the distributor would be cut off from 3M products; that the acceptance was purely voluntary on the part of the jobber; that the proposal was rejected by some distributors; that those who rejected the proposal were not cut off from 3M products; and that those who accepted the proposals received increased technical service and assistance while those who rejected the proposals, together with other jobbers or distributors who did not qualify, continued to receive 3M products and the technical service and assistance theretofore given them. This fact situation in the case at bar is in no way comparable to that before the Third Circuit in F. C. Russell Company v. Consumers Insulating Company, supra. The trial judge also found that a large percentage of distributors identified by the President of Technical Tape as 3M distributors in the New York area are, according to his testimony, also distributors of Technical Tape’s products; and that many Technical Tape jobbers or distributors also handle 3M products. The trial court’s opinion refers to the practices condemned by the doctrine of the Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 315 U.S. 788, 62 S.Ct. 402, 86 L.Ed. 363 (which declared that a court of equity will not lend its aid to protect a patent monopoly when the patentee is using the patent as an effective means of restraining competition with the sale of its unpatented articles) the trial court stated: “There has been a complete failure of proof that the sales policy of 3M falls within the interdicted conduct.” And there is no proof that defendant violated Section 3 of the Clayton Act (15 U.S.C.A. § 14). In fact the proof is to the contrary. The defense of “misuse” by defendant of its Drew II patent, appears to be something that plaintiff sought in vain to construct, in order to escape the consequences of its own deliberate and profitable infringement. A manufacturer has the right to stop dealing with a distributor or jobber who is acting unfairly towards his product or is trying to undermine his trade. That seems to be a proper corollary of Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, at page 614, 34 S.Ct. 951, at page 955, 58 L.Ed. 1490, where it was held that: “A retail dealer has the unquestioned right to stop dealing with a wholesaler for reasons sufficient to himself, and may do so because he thinks such' dealer is acting unfairly in trying to undermine his trade.” Ordinarily a manufacturer may refuse to deal with a distributor or jobber for reasons sufficient to himself. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992; United States v. Schrader’s Son, Inc., 252 U.S. 85, 97, 40 S.Ct. 251, 64 L.Ed. 471; and Brosious v. Pepsi-Cola Co., 3 Cir., 155 F.2d 99, 101-102. Of course, this right of a manufacturer must be exercised in good faith, and within the restrictions of the Clayton Act, and may not be exercised in such a manner so as to “substantially lessen competition” or “tend to create a monopoly” in any line of commerce. The record in the case does not establish that 3M’s refusal to sell to five of the abovenamed distributors was done in bad faith, and had as its purpose to substantially lessen competition, or had a tendency to create a monopoly. Further, the Clayton Act was not intended to reach every remote lessening of competition. Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 356-357, 42 S.Ct. 360, 66 L.Ed. 653. There has been no showing here that “competition has been foreclosed in a substantial share of the line of commerce affected,” by the so-called select distributorship policy. Standard Oil Co. of Cal. and Standard Stations v. United States, 337 U.S. 293, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371; Dictograph Products v. Federal Trade Commission, 2 Cir., 217 F.2d 821, 825. This is not a case where the manufacturer imposed a uniform exclusive dealing contract on its jobbers and distributors, such as was the situation in the Dictograph and Russell cases, hereinbefore cited, on which plaintiff relies. The judgment of the District Court is in all respects affirmed. . The opening paragraph of Drew’s patent No. 2,177,627 states: “This invention relates to adhesive sheets having a backing with a non-fibrous surface (such as normal or waterproofed films of regenerated cellulose) and a coating of normally tacky and pressure-sensitive adhesive united thereto. While not limited thereto, the invention relates especially to transparent adhesive sheets, to adhesive sheets in the form of adhesive tapes which may be sold in stacked or coiled form, and to adhesive sheets or tapes which are well adapted to the sealing or securing of wrappers composed of non-fibrous lustrous cellulosic films and the like.” The adhesive tape made by defendant under the Drew patent is familiarly known as “Scotch” cellophane tape. . The Drew II patent (No. 2,177,627) after briefly describing the invention in its opening paragraph (footnote 1), mentions the packaging problems which it would help solve. Those problems arose from the use of “packaging and wrapping sheets composed of thin, transparent and flexible non-fibrous films” and the need for sealing or fastening the sheets with proper adhesives, a need which the old conventional adhesives could not meet because of “the nonporous or highly glazed surfaces provided by this type of sheet material” which is transparent and waterproof. The patent then goes on to describe how, under Drew’s invention, the sheets of film material “are provided with coatings of normally tacky and pressure-sensitive adhesive firmly united thereto.” These and other characteristics of the adhesive are discussed in the patent as follows: “By ‘normally tacky and pressure-sensitive’ it is meant that under ordinary atmospheric conditions the adhesive is stably in a condition such that it does not need to be activated by solvents or heat or otherwise prepared in order to secure good adherence to surfaces against which the adhesive coating (with its backing) may be pressed when used. An adhesive coating is provided which enables the adhesive sheeting to be affixed to smooth lustrous surfaces, such as non-fibrous cellulosic surfaces of wrapping or packaging sheets or films. An object of the invention is to provide a unified adhesive coating possessed of such coherence in relation to adhesiveness and so firmly united to its backing that the adhesive sheet may be stripped from smooth non-fibrous surfaces (not possessing special chemical affinity for the adhesive), to which it may have been temporarily applied, without offsetting of adhesive material. Hence the adhesive coating may be termed ‘non-offsetting,’ and this expression designates an important physical or physico-chemical property or characteristic of the adhesive coating, namely, that its coherency is greater than its adhesiveness. Further, an object is to provide adhesive sheets having an adhesive coating that is in elastic equilibrium with its backing so that warping and curling of the sheet, and blistering of the adhesive coating, are avoided.” The drawings accompanying the patent show three figures, which are described on pago 1 of the patent as follows: “Fig. 1 shows a roll of adhesive tape, the tape having a non-fibrous film backing provided with a water-insoluble normally tacky and pressure-sensitive adhesive coating, which may be unwound without delamination or offsetting of adhesive; “Fig. 2 is a diagrammatic cross-sectional representation of a construction in which a primer coating is interposed between the backing film and Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_respond1_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 respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1678. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided May 1, 1973. Harry L. Brovvne, Kansas City, Mo., for petitioner. M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent. Before GIBSON, BRIGHT and ROSS, Circuit Judges. GIBSON, Circuit Judge. Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107. The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract. The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned. Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971. During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union. Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it. On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink. Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink. The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as: “ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted). Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order. Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike. In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause. Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act. Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced. Enforcement denied. . Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act. “It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965). See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_casetyp1_7-3-1	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 - taxes, patents, copyright". CALIFORNIA STATE BOARD OF EQUALIZATION v. GOGGIN. No. 12727. United States Court of Appeals Ninth Circuit. Aug. 21, 1951. Rehearing Denied Oct. 20, 1951. Edmund G. Brown, Atty. Gen., State of Cal., James E. Sabine, Deputy Atty. Gen., Edward Sumner, Deputy Atty. Gen., for appellant. Leslie S. Bowden, Los Angeles, Cal., for appellee. Frank C. Weller, Hubert F. Laugharn, Thomas S. Tobin, all of Los Angeles, Cal., as amicus curiae. Before STEPHENS and POPE, Circuit Judges, and FEE, District Judge. STEPHENS, Circuit Judge. On February 5, 1946, West Coast Cabinet Works, Inc., a corporation engaged in manufacturing and selling cabinets at retail in California, filed a petition under Chapter 11 of the Bankruptcy Act and George T. Goggin was appointed receiver. From February 5, 1946, until March 11, 1946, Goggin, as receiver, conducted the business of the corporation under authority of the court, made retail sales, and paid the California sales tax thereon. On March 12, 1946, the corporation 'Was adjudicated a bankrupt and Goggin was appointed trustee. Pie continued to conduct the business of the bankrupt until March 22, 1946, and paid the California sales tax on retail sales made. On March 22, 1946, the trustee was directed by order of the court to sell the assets of the estate. In carrying out the order, the trustee made numerous sales of the personal property of the bankrupt and paid the California sales tax thereon. On March 29, 1946, the trustee sold at retail, by public auction, five trucks which had been used by the bankrupt for delivery purposes in the conduct of the business. The California sales tax was not added to the purchase price and the sales were not reported in the bankrupt’s sales tax return filed by the trustee. ■ The appellant, California State Board of Equalization, made an additional determination of taxes owing from the trustee based upon the sale of the trucks and notice of the assessment was mailed to the trustee. Upon the trustee’s failure to make timely payment, a penalty of ten per cent was added to the. amount claimed to be due. On petition of the trustee, the court granted an order to show cause directing appellant to appear and give reasons why they should not be permanently restrained and enjoined from enforcing the additional assessment. On November 14, 1946, after a hearing on the order to show cause, the referee enjoined the appellant from enforcing against the trustee any of the provisions of the California sales tax claimed to be due as a result of the sale of the trucks. The district judge affirmed the referee’s order. In re West Coast Cabinet Works, Inc., D.C.Cal.1950, 92 F.Supp. 636. The contention as to lack of jurisdiction is not well taken.! The court below had jurisdiction to issue the injunction. Title 11 U.S.C.A. §-11, sub. a (15); State Board of Equalization v. Boteler, 9 Cir., 1942, 131 F.2d 386. Title 28 U.S.C.A. § 41(1), [now Title 28 U.S.C.A. § 1341] which provides that no district court shall have' jurisdiction of any suit to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any state where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such state did not abridge the power specifically granted to the bankruptcy court to make such judgments as may be necessary for the enforcement of the pro-visions of the Bankruptcy Act. See Lyford v. City of New York, 2 Cir., 1943, 137 F.2d 782; In re California Pea Products, Inc., D.C.Cal.1941, 37 F.Supp. 658. The process of dealing with state tax assessments is one essential to the administration of a bankruptcy estate and does not amount to a suit against the state. Gardner v. New Jersey, 1947, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504. Appellant contends that the record establishes that the five trucks were sold by the trustee- “during a period in which he was operating the business of the bankrupt * * It is averred that this is established by the stipulation entered into between the State Board of Equalization and the trustee, which states that “During the period from March 12, 1946, to May 1, 1946, George T. Goggin, as trustee for said bankrupt, was engaged in the sale of tangible, personal property at retail * * The stipulation is not to the effect that sales were made while the business was being conducted. The evidence shows that sales of cabinets were made on April 23, 1946, and on May 14, 1946, after and pursuant to the liquidation order. The continued operation of a bankrupt’s business is a matter within the sound discretion of the court. Title 11 U.S.C.A. § 11, sub. a (5); R. J. Reynolds Tobacco Co. v. A. B. Jones, Inc., 8 Cir., 1931, 54 F.2d 329. The receiver or trustee is not empowered merely by virtue of his appointment to conduct the business of the bankrupt. In re Richter, D.C.N.Y. 1941, 40 F.Supp. 758. When the court on March 22, 1946 ordered liquidation of the assets, the trustee’s authority to conduct the business terminated. The completion and sale of the unfinished cabinets in order that they might be sold as-finished -pieces did not amount to conduct of the business. In re Duke, D.C.Mo.1924,. 15 F.2d 92, 93 (receiver who hired employees for short time to finish caps in-order that they might be sold as finished caps rather than pieces- of cloth did not “conduct the business”). While it is undisputed, as is indicated, by the stipulation and by the record on-appeal, that retail sales of personal property were made -by the trustee after March 22, 1946, it is also undisputed that in making the sales, the trustee was liquidating the business. The question remains whether or not the California sales tax applies to liquidation sales of personal property made by a trustee in bankruptcy pursuant to court order. Similar issues were before us in State Board of Equalization v. Boteler, supra, and a reading of that opinion disposes of many of the contentions urged on this appeal. Appellant states that the above decision no longer has vitality because of certain changes since made in the California Sales and Use Tax law. The tax measure involved is imposed upon all “retailers.” A “retailer” is defined as, inter alia, every person engaged in the business of making sales at retail of tangible personal property. In 1945, some years after the decision in State Board of Equalization v. Boteler, supra, Section ■6005, which defines those included within the meaning of the word “person”, as used in the act, was amended and the words “trustee” and “United States” were added. It is contended that these changes impose the tax upon liquidation sales made by a trustee in bankruptcy through the operation of former Section 124a of Title 28. We do not feel that the changes made in the California act have the effect which is sought to be placed upon them by appellant. Boteler v. Ingels, 1939, 308 U.S. 57, 521, 60 S.Ct. 29, 84 L.Ed. 78, 442, made it clear that a trustee in bankruptcy who operates a business, does so subject to state taxes. The question which is presented here and which was decided in State Board of Equalization v. Boteler, supra, is not whether the tax applies to a trustee in bankruptcy, but whether it applies to sales made by him in the liquidation of the bankrupt estate pursuant to court order. The construction of the California tax is a matter of state law which is binding upon us. Richfield Oil Corp. v. State Board of Equalization, 1946, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80. The California Supreme Court has stated that the tax measure involved is an excise tax for the privilege of conducting a retail business, measured by the gross receipts from sales. Western Lithograph Co. v. State Board of Equalization, 1938, 11 Cal.2d 156, 78 P.2d 731, 171 A.L.R. 838; National Ice & Cold Storage Co. of California v. Pacific Fruit Express Co., 1938, 11 Cal.2d 283, 79 P.2d 380. The fact that the tax has been held applicable to the sale of glasses by an optometrist, Kamp v. Johnson, 1940, 15 Cal.2d 187, 99 P.2d 274, to the sale of used printing equipment in the course of conducting a printing business, Bigsby v. Johnson, 1941, 18 Cal.2d 860, 99 P.2d 268, 118 P.2d 289, to liquor and meals sold by a nonprofit social club to its members, Union League Club v. Johnson, 1941, 18 Cal.2d 275, 115 P.2d 425, and to the transfer of railroad equipment by a railroad corporation primarily engaged in the carriage of freight and passengers, Northwestern Pacific Railroad Company v. State Board of Equalization, 1943, 21 Cal.2d 524, 133 P.2d 400, does not alter the fact that when the trustee in bankruptcy disposed of the trucks here involved “ * * * the sale was not made in the course of conducting a business but in the process of putting an end to a business.” Los Angeles City High School District v. State Board of Equalization, 1945, 71 Cal.App. 2d 486, 163 P.2d 45, 47, referring to our opinion in State Board of Equalization v. Boteler, supra. See also Coca-Cola Co. v. State Board of Equalization, 1945, 25 Cal.2d 918, 156 P.2d 1; People v. Imperial County, 1946, 76 Cal.App.2d 572, 173 P.2d 352; Schneider v. State Board of Equalization, 1944, 62 Cal.App.2d 463, 145 P.2d 90; People v. Thomas, 1940, 37 Cal.App.2d 155, 99 P.2d 294; Banken v. State Board of Equalization, 1947, 79 Cal.App.2d 572, 180 P.2d 400. More tenable is the construction that the California tax, as indicated by the California courts in the cases referred to, is geared to the federal statute, which is general in nature, making officers appointed by United States courts liable for state taxes if they “conduct any business”. A harmonious application of the federal and state laws here involved leads us to the conclusion that in making the sale of the assets of the bankrupt estate pursuant to court order for the purpose of liquidation, the trustee was not subject to the California sales tax. State Board of Equalization v. Boteler, supra; In re California Pea Products, Inc., supra. It would be unwise to foster conflict where Congress has manifested a desire for harmony. Any such conflict would necessarily entail an application of the fundamental doctrine that laws, enacted pursuant to power delegated to the United States under the Constitution are the supreme law of the land, and state laws inconsistent therewith are to that extent invalid. McCulloch v. Maryland, 1819, 4 Wheat 316, 17 U.S. 316, 4 L.Ed. 579. Our conclusion, however, adheres not only to our former view, State Board of Equalization v. Boteler, supra, but also to the doctrine that where problems in the sphere of dual sovereignty are involved, legislation should receive a construction which permits both to function with a minimum of interference each with the other. Metcalf & Eddy v. Mitchell, 1926, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384. Affirmed. . Title 11 U.S.C.A. § 701 et seq. . California Revenue and Taxation Code, § 6001 et seq. . Consult California State Board of Equalization v. Goggin, 9 Cir., 1950, 183 F.2d 489, certiorari denied 340 U.S. 891, 71 S.Ct. 207. . California Revenue and Taxation Code, § 6051. . California Revenue and Taxation Code, § 6015, as amended by Cal.Stats., 1943, e. 699, § 3, p. 2455, c. 822, § 1, p. 2620. See later amendment Cal.Stats.1949, c. 728, § 1.5. . Cal.Stats.1945, ch. 926, § 1. . “Any receiver, liquidator, referee, trustee, or other officers or agents appointed by any United States court who is authorized by said court to conduct any business, or who does conduct any business, shall, from and after the enactment of this Act, be subject to all State and local taxes applicable to such business the same as if such business were conducted by an individual or corporation * * Act of June 18, 1934, c. 585, 48 Stat. 993. See new Title 28 U.S.C.A. § 960, Act of June 25, 1948, c. 646, 62 Stat. 927. . Title 28 U.S.C.1940 ed. § 124a, see footnote 7, supra. 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_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. UNITED STATES of America ex rel. John C. REBENSTORF, Petitioner-Appellant, v. Frank J. PATE, Warden, Respondent-Appellee. No. 17286. United States Court of Appeals Seventh Circuit. Sept. 22, 1969. Rehearing Denied Nov. 17, 1969. Nicholas D. Chabraja, Chicago, Ill., for petitioner-appellant. William J. Scott, Atty. Gen., Thomas J. Immel, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee; Joel M. Flaum, Asst. Atty. Gen., Chicago, Ill., of counsel. Before CASTLE, Chief Circuit Judge, SWYGERT, Circuit Judge, and GRANT, Chief District Judge. . Chief Judge Robert A. Grant is sitting by designation from the United States District Court for the Northern District of Indiana. SWYGERT, Circuit Judge. This is an appeal from the district court’s order dismissing John C. Reben-storf’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The petitioner alleged that he had been denied due process and equal protection because he was not represented by counsel at his arraignment in the initial proceeding before the Circuit Court of the Fifth Judicial Circuit of Vermillion County, Illinois. Further Rebenstorf asserted that he was denied due process because he was not represented by counsel at a hearing conducted after his conviction to determine whether he was indigent for purposes of the appointment of counsel for appeal. Petitioner claimed that he was denied a fair trial because of the incompetence of his court-appointed counsel that grew out of the counsel’s failure to assert two “absolute” defenses to the charge upon which Rebenstorf was convicted. Finally, a denial of due process and equal protection was asserted to have resulted from the denial of a free transcript and assistance of counsel in preparing an appeal from a post-judgment relief proceeding in the state court. The district court’s memorandum opinion and order dismissed the first three contentions on the ground that they were fully and fairly litigated before the Supreme Court of Illinois and thus presumably correct under 28 U.S.C. § 2254(d) and refused to consider the final contention since it had not been fully presented to Illinois state courts and thus the petitioner had failed to exhaust his state court remedies. The history of this case commenced with Rebenstorf’s arraignment on September 30, 1964 on the charges of theft and attempted theft. Although the petitioner expressed his intention to retain private counsel, the court appointed a public defender, John Unger, to represent him. When the petitioner stated that he did not wish to plead at that time, the court entered a plea of not guilty on its own motion. On January 27, 1966 the petitioner was convicted by a jury of the crime of theft and subsequently sentenced to a term of not less than one nor more than three years. The petitioner’s letter of March 30, 1966 manifested his desire to appeal the conviction and requested the trial court to provide counsel. At a hearing held on April 7, 1966 to determine whether the petitioner was an indigent and therefore entitled to the appointment of counsel and a free transcript, the petitioner stated at that time he was discussing with his family the possibility of representation by a private attorney and that he desired additional time to make the decision. The hearing was continued until April 18, 1966 at which time the defendant appeared and again stated that he wished to be represented by private counsel if he could afford one. The petitioner reported that he and his family could afford to pay about $1,200 to employ counsel for an appeal and that his annual earnings were $9,000. After observations about the financial status of the petitioner were received from the public defender Unger, another attorney, and the state’s attorney, the court determined that since the petitioner was not indigent he could afford to employ private counsel. Shortly after the non-indigency determination, the petitioner retained an attorney, Mr. Harper, who filed a motion for extension of time in which to file the record on appeal. This motion was denied and the State’s motion to dismiss the appeal was granted on July 21, 1966 by the Vermillion County Circuit Court. On October 26, 1966 the Illinois Appellate Court dismissed the petitioner’s appeal. This was the last step taken by the petitioner in the direct appeal process. With the assistance of new private counsel, Walter R. Stewart and John A. Lambright, the petitioner filed a motion for post-conviction relief under Ill. Rev.State. ch. 38, § 122-1 et seq. (1965) in the Vermillion County Circuit Court on October 10, 1966. The circuit court denied the motion and its decision was affirmed on appeal, People v. Rebenstorf, 37 Ill.2d 572, 229 N.E.2d 483 (1967), cert. denied, Rebenstorf v. Illinois, 390 U.S. 924, 88 S.Ct. 853, 19 L.Ed.2d 984 (1968). Petitioner’s private counsel represented him at every stage of the post-conviction hearing proceeding. The two issues raised and disposed of in this first collateral attack were the absence of counsel at arraignment and at the post-conviction indigency inquiry. Having achieved no success in the post-conviction hearing proceeding, on January 15, 1968 the petitioner filed a petition for post-judgment relief in the Vermillion County Circuit Court under the provisions of Ill.Rev.Stat. ch. 110, § 72 (1965). Attorney Walter R. Stewart, again privately retained, filed the papers and represented the petitioner at this proceeding. In addition to the errors raised in the earlier post-conviction hearing proceeding, petitioner asserted for the first time that he had been denied the effective assistance of counsel at trial. On May 13, 1968 the circuit court denied the petition after an evidentiary hearing. The same day petitioner filed a pro se notice of appeal and motion seeking appointment of counsel, a free transcript of the post-judgment relief proceeding, and supersedeas on appeal. The State objected to the motion on the ground that there is no provision in the Illinois Statutes for appointment of counsel or the furnishing of a free transcript on appeal from an adverse decision in a post-judgment proceeding. On June 3, 1968 the circuit court denied the motion based on its findings that the petitioner had been represented by retained counsel in earlier proceedings, that he had not furnished the court with sufficient proof of his indigency, and that the post-judgment proceedings were civil in nature. After pursuing the above outlined state procedures, Rebenstorf filed his petition for writ of habeas corpus in district court on June 11, 1968. The district court denied the petitioner’s motion for appointment of counsel and dismissed the petition for the reasons previously set forth. The district court did enter an order permitting this appeal in forma pauperis and granted issuance of a certificate of probable cause. Subsequent to the district court’s denial of Rebenstorf’s petition, he attempted to appeal pro se the earlier denial of his post-judgment relief to the Illinois Supreme Court. After denying his motion for appointment of counsel, super-sedeas and an immediate hearing, the Supreme Court took no further action on his appeal. Rebenstorf also petitioned the Illinois Supreme Court for a writ of habeas corpus. This petition was denied on January 29, 1969 The contentions of the petitioner relating to the denial of counsel at arraignment and the absence of the effective assistance of counsel at the post-conviction indigency hearing were fully and fairly decided by the Illinois Supreme Court’s disposition of the post-conviction hearing appeal in People v. Rebenstorf, 37 Ill.2d 572, 229 N.E.2d 483 (1967). The district court was correct in denying relief on these grounds for the reason that the Illinois Supreme Court’s decision was made after a review of the record of the circuit court proceeding which afforded the petitioner a full hearing on the merits of the issues and must be presumed correct under 28 U.S.C. § 2254(d) and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Another contention raised by the petitioner was that he was denied a free transcript and the assistance of court-appointed counsel for the purpose of appealing the denial of post-judgment relief. The district court refused to consider this argument on its merits due to the petitioner’s failure to exhaust his state court remedies. It is now apparent that the petitioner has exhausted his state remedies and the question he presents is ripe for consideration by a federal court. Since the facts surrounding the denial of a transcript and counsel for appeal are undisputed, it would, serve no useful purpose to remand for an evidentiary hearing on that issue. A straightforward question of law is presented for our determination: whether the petitioner was denied his right to appeal as a result of the circuit court’s action. Although post-judgment relief was available to the petitioner as a collateral remedy for testing the validity of his prior criminal conviction, we cannot overlook the fact that post-judgment relief, like the federal habeas corpus remedy, is civil in nature. Post-judgment relief is an integral part of the Illinois Civil Practice Act. Since the proceeding is civil, there is no constitutional requirement for appointment of counsel on appeal or for the provision of free transcript. Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Furthermore, even if the Constitution required provision of a free transcript and appointment of counsel for purposes of appeal from a post-judgment relief proceeding, the finding of the circuit court that the petitioner was not indigent would preclude its appointment of counsel and provision of free transcript. The petitioner also claims he was prejudiced at trial by the incompetence of court-appointed counsel that resulted from counsel’s failure to present two “absolute” defenses to the charge upon which he was convicted. The district court erroneously held that this contention was considered and rejected by the Illinois Supreme Court in People v. Rebenstorf, 37 Ill.2d 572, 229 N.E.2d 483 (1967)). Because the issue of incompeteney of trial counsel was not before the Illinois Supreme Court, the district court erred in dismissing that contention on the basis of the presumed correctness under 28 U.S.C. § 2254(d) of the prior Illinois Supreme Court decision. Rebenstorf first raised the incompetency issue for consideration by the state court in his post-judgment relief petition filed subsequent to the Illinois Supreme Court’s decision in the post-conviction hearing appeal. Although the federal habeas corpus petition was filed after the Vermillion County Circuit Court rejected Rebenstorf’s incompetency of counsel claim, the court below did not have before it the record of the state court proceedings relating to this claim. The state court’s memorandum opinion set forth a number of findings of fact relative to the incompetency claim, but these findings, the record purportedly supporting them, and the memorandum opinion were not before the district court. This court said in United States ex rel. Worlow v. Pate, 411 F.2d 972 (7th Cir. June 10, 1969): “The federal court may accept the state court’s findings of fact, but only if it determines, by an independent view of the record, that those findings were the result of a ‘full and fair hearing.’ ” We held in that case that “the district court’s denial of the petitions for writs of habeas corpus in the instant case, without having compelled production of the state court record to determine whether petitioners’ contentions were fully and fairly dealt with by the state court, was error.” There is no substitute for the state court record in the determination of the constitutional errors at which the writ of habeas corpus is directed. Consequently, this cause must be remanded for consideration of the incompetency of counsel claim under the standards of 28 U.S.C. § 2254(d). The final error raised upon appeal is that the district court erred in not appointing counsel to assist the petitioner in the preparation and presentation of his writ of habeas corpus. The courts have held that despite the general expansion of the right to counsel, this right does not include an absolute requirement that a prisoner have an attorney appointed to prepare collateral attacks in all post-conviction proceedings. Although the appointment of counsel in habeas corpus proceedings may be required in certain cases, Campbell v. United States, 318 F.2d 874 (7th Cir. 1963), appointment of counsel for indigents in habeas corpus “rests in the sound discretion of the district courts unless denial would result in fundamental unfairness impinging on due process rights.” LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967). The Supreme Court has recently observed the practice of most federal courts to appoint counsel in post-conviction proceedings only after the court determines “that issues are presented calling for an evidentiary hearing.” Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969). The district court under the facts of this case acted within its discretion in refusing to appoint counsel to assist the petitioner. In light of the district court’s failure to consider the state court record in passing on the petitioner’s claim of incompetency of counsel, the judgment of the district court denying the petition for a writ of habeas corpus is vacated and the case is remanded. Nicholas D. Chabraja of the Illinois Bar represented the petitioner as court-appointed, attorney. The court is appreciative of his excellent representation. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_r_fiduc	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellant, v. DON B. HART EQUITY PURE TRUST, Don B. Hart and Mary Louise Hart, Defendants-Appellees. No. 86-1614. United States Court of Appeals, Fifth Circuit. June 16, 1987. Nancy M. Koenig, Myrna B. Silen, Attys., Lubbock, Tex., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellant. Martha A. Miller, Atlanta, Ga., for defendants-appellees. Before WISDOM, WILLIAMS, and HILL, Circuit Judges. ROBERT MADDEN HILL, Circuit Judge: In this appeal the Small Business Administration (SBA) contends that the district court erred in granting summary judgment in favor of Don Hart Equity Pure Trust (Hart Trust) on a claim by the SBA for the payment of a deficiency judgment rendered against Hart Trust. We agree with the SBA and therefore reverse the court’s granting of summary judgment in favor of Hart Trust. I. The facts in this case were stipulated to by both parties. Don B. Hart and Mary Louise Hart are farmers in Hansford County, Texas. Because of financial difficulties, on August 28, 1978, the Harts, through Hart Trust, sought and obtained a loan from the SBA. Hart Trust executed a promissory note in the amount of $157,400, payable to the SBA. That same day the Harts personally guaranteed the note, with the SBA obtaining a lien and an undivided interest in two properties owned by the Harts. The loan called for repayment in annual installments of $18,452, due each January 15 from 1979 through 1988. Hart Trust made its first installment payment on January 15, 1979. It could not make the second payment on January 15, 1980, but the SBA agreed to defer the payment until July 15, 1980. When Hart Trust could not make that payment, the 1980 installment was deferred a second and final time until November 15,1980. Hart Trust never paid this or any of the subsequent installments. After Hart Trust failed to make the second installment payment, the SBA declared the note in default and accelerated the note so that the entire principal became due and payable. On September 7, 1982, the properties securing the note were sold at a foreclosure sale, and the proceeds were applied to Hart Trust’s debt under the note. After the sale, Hart Trust owed an unpaid principal balance of $55,261.64. The SBA sought payment of this amount from the Harts and then instituted this action against them when the Harts refused to pay. During the service of the loan, the SBA did not at any time provide Hart Trust or the Harts with a written notice of the provisions for deferral and loan payment moratoriums found in 13 C.F.R. § 131. After consideration of these facts, the district court concluded that SBA borrowers have a legal entitlement to loan deferral consideration, and that Hart Trust was denied that consideration without procedural due process. In reaching this conclusion, the court relied on cases interpreting deferral procedures used by the Farmers Home Administration (FmHA). The court noted that the FmHA cases were not binding authority, but because of the parallels between the language and purposes of the FmHA and SBA loan program statutes, the court felt justified in relying upon the FmHA cases when considering due process requirements in the SBA loan deferral program. The court concluded that the SBA should be held to the same due process standards that have been applied to the FmHA. In examining FmHA cases, the court adopted the rule expressed in Allison v. Black, 723 F.2d 631, 634 (8th Cir.1983): The requirement of a request by the borrower prior to consideration for section 1981a relief presupposes that the borrower has knowledge of the availability of such relief. Notice to the borrower is therefore indispensable. In like manner, the requirement of a showing of prima facie eligibility is necessarily premised upon the expectation that some procedure will be provided under which the borrower may make the requisite showing. Thus, the rudimentary elements of adequate notice and an opportunity to be heard are embodied in the language of section 1981a. Based on this language, the court held that Hart Trust should have received written notice of the deferral provisions, and that any constructive notice received by reason of obtaining deferrals was not sufficient. The court also concluded that even if sufficient notice was given, Hart Trust did not have an adequate opportunity to be heard, and thus the procedure used was still infirm. The district court also was concerned with the lack of substantive standards by which a borrower’s entitlement to deferral relief could be measured. The court criticized the program because the decision to extend deferral relief to a borrower was left to the discretion of the individual SBA loan officer. Thus, the court concluded that there was no safeguard to insure consistent administration of the loan deferral program. Based on these factors, the district court concluded that Hart Trust failed to receive due process under the provisions of the Small Business Act because [it was] not afforded a reasonable opportunity for meaningful administrative review of the decisions made by the local loan servicing officer. Meaningful review requires as a minimum the promulgation of standards to be used in measuring deferral rights under the statute, personal notice to borrowers of the availability of and the standards governing deferral, and finally, personal notice of the proper procedure for appealing the loan servicing officer’s decision. For these reasons, the court granted summary judgment in favor of Hart Trust. The SBA now appeals, arguing that (1) this circuit’s unpublished opinion, United States v. Parr, 793 F.2d 1288 (5th Cir.), cert. denied, — U.S.-, 107 S.Ct. 320, 93 L.Ed.2d 293 (1986), controls and requires reversal; (2) that due process in the SBA loan program context does not require personal notice of the availability of deferral relief and a meaningful opportunity to be heard; (3) that the FmHA line of cases, and the standards developed in those cases, are not applicable to the SBA; (4) that the SBA does not administer its deferral program in an ad hoc, discretionary, or inconsistent manner; (5) that the district court erred in giving probative value to the terms of the settlement agreement adopted in Stone; and (6) that the court erred in holding that the SBA was not entitled to a deficiency judgment. We address these contentions below. II. First, we find that Parr controls the first three issues. Under Parr, Hart Trust does not have the right to receive actual written notice of the deferral program and an opportunity to be heard in order for the SBA to have complied with procedural due process standards. Parr also prevents Hart Trust from relying upon FmHA cases as support for that position. In Parr the borrowers were farmers in Frio County, Texas, and were unable to maintain their obligations under the SBA Disaster Loan Program (the same program involved in the instant case). The Parrs took out two loans with the SBA. The payments on the first loan were deferred three times for a total of 15 months, and the payments on the second loan were deferred twice for a total of 18 months. Eventually the SBA decided to accelerate the loans and place the Parrs in default. The Parrs never tendered a single payment on either of the two loans. The Parrs argued that (1) the United States had an obligation to continue to extend credit to them because the SBA assured them that their loan obligations would be deferred if they could not make their payments; and (2) that the United States could not accelerate their loans without giving them notice and an opportunity to be heard. This court found neither argument to be persuasive. As to the Parr’s claim for procedural due process, the court held that people are charged with knowledge of the contents of federal regulations, just as they are charged with knowledge of statutory law. See Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Thus, officers of the United States were not responsible for informing the Parrs of any right to loan deferrals before acceleration. As for the Parrs’ claim that they did not receive notice, the court found that even if the United States did have an obligation to inform the Parrs of the availability of deferrals, the Parrs were so informed. In fact, the Parrs received three deferrals on the first loan and two deferrals on the second. Finally, the court dismissed the Parrs’ claim that the government had any duty to continue to make loans to the Parrs, noting that no such obligation was contained in the written promissory notes signed by the Parrs. The facts of Parr correspond almost exactly with the facts of the instant appeal. In both cases, after having received deferrals, the borrowers were still unable to pay back the loans. The SBA eventually declared the loans to be in default and foreclosed upon the property. In both cases the borrowers argued that due process required that they receive actual notice of the deferral program and an opportunity to be heard on the issue of deferrals. In Parr we rejected that claim, and, therefore, we must follow that precedent and also reject such a contention in the present case. Hart Trust attempts to minimize Parr’s impact through three arguments. First, it contends that Parr has no precedential value. However, there is no merit to this assertion. Although Parr is unpublished, it is binding precedent. 5th Cir.R. 47.5.3. Moreover, even if we were to disagree with the conclusion reached in Parr, we cannot overrule another Fifth Circuit panel absent an overriding Supreme Court decision or a change in statutory law. Girard v. Drexel Burnham Lambert, Inc., 805 F.2d 607, 610 (5th Cir.1986). Thus, we are bound by Parr. Because Parr is binding precedent, we are not at liberty to consider the potential applicability of the FmHA line of authority. The second argument made by Hart Trust, which is related to the first, is that this court erred in the holding in Parr that the “SBA has no affirmative obligation to permit its borrowers to exhaust loan options as condition precedent to bringing collection actions against them.” As we stated above, this panel is bound by the Parr holding that the SBA has no such obligation. Finally, Hart Trust attempts to distinguish Parr factually by asserting that, unlike the Parrs, Hart Trust did not receive actual deferrals. Instead, appellee argues that it received “informal extensions which provided them no loan servicing assistance.” We do not find any support that the alleged “informal extensions” were not deferrals. The relevant deferral provisions are contained in 13 C.F.R. §§ 131.2 and 131.3. Section 131.2 provides: “ ‘Deferment’ means the procedure whereby a lender (participant or SBA) suspends a borrower’s obligation to make payments on a loan for a stated period.” Section 131.3(b) provides: “When SBA has decided to suspend payment on a direct... loan, a deferment will be approved under administrative procedures, and payment by borrower will not be required for a stated time period.” In the present case, we believe the “informal extensions” were deferrals. Hart Trust had its payment obligations suspended for a stated period of time. We find no merit to Hart Trust’s attempted distinction. In sum, we hold that we are bound by Parr to conclude that due process does not require personal written notice of the availability of deferral relief and an opportunity to be heard on that issue. Also, our reliance on Parr precludes the ability of this court to find such obligations based upon FmHA loan deferral cases. III. The next issue we must consider is whether the SBA administers its deferral program in a discretionary, inconsistent, and ad hoc manner. Regarding this issue the district court held: In addition to the lack of procedural safeguards, this Court is concerned with the apparent lack of substantive standards whereby a borrower’s entitlement to deferral relief can be measured. While the statute itself provides some general guidance for applying the suspension provisions of the statute, the Administrator has failed to generate uniform criteria to aid the various SBA offices in the exercise of the discretion granted by the statute. In essence, the decision to extend deferral relief to a given borrower is left to the unguided inclinations of the individual SBA loan servicing officer. Thus, the SBA provides no safeguards to insure the consistent administration of the loan deferral relief provisions, [footnotes omitted]. In Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055 [39 L.Ed.2d 270] (1974), the Supreme Court stated that The power of an administrative agency to administer a Congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress____ No matter how rational or consistent with Congressional intent a particular decision might be, the determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds. 415 U.S. at 231 [94 S.Ct. at 1072]. The present record reflects exactly that. After several informal extensions were granted pro forma at the request of the borrower, the SBA reversed its course, declined to grant any further extension, and proceeded to accelerate defendants’ note without any apparent evaluation of defendants’ situation in light of the deferral provisions of the statute. Such a course is unacceptable given the expressed intention of Congress to make deferral relief available to SBA borrowers when confronted with the circumstances described in the statute. First, we note that the SBA deferral program is designed to be discretionary. The statutory framework for deferral provides: (2) The Administration may undertake or suspend for a period of not to exceed 5 years any small business concern’s obligation under this subsection only if— (A) without such undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become insolvent or remain insolvent; (B) with the undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become or remain a viable small business entity; and (C) the small business concern executes an agreement in writing satisfactory to the Administration as provided by paragraph (4). 15 U.S.C. § 634(e)(2) (emphasis added). The legislative history of this statute confirms this view: The Senate bill basically gives SBA the same authority [as that of the House bill] except that it would be discretionary rather than mandatory to grant the moratorium. The Senate bill also limits eligibility to borrowers who are still viable prior to the granting of the suspension and authorizes the SBA to require the borrower to take such action as is appropriate to assure that the rights and interests of the lender will be safeguarded. The conference substitute adopts the Senate provision but extends eligibility to small businesses which have already become insolvent providing that with the moratorium the small business could again become a viable entity. (emphasis added). H.R.Conf.Rep. No. 95-535, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Ad.News 821, 843, 848. The district court, however, was concerned that while the decision to extend a deferral may be discretionary, there are not any uniform criteria to aid the various SBA offices in the exercise of its discretion. Thus, the decision of whether to extend deferral relief to a borrower is left to the unguided inclinations of the individual SBA officer, giving rise to potential inconsistent results. We disagree. While there is a certain degree of unguided discretion, that discretion was purposefully added to the deferral program. Moreover, the SBA is not completely unguided in its administration of the program. The statute does provide the parameters of when the SBA may defer repayment of a loan. It may do so only if (1) without such suspension of the obligation the business would become insolvent or remain insolvent, (2) with such suspension the business would become or remain a viable business, and (3) the business executes a repayment agreement. 15 U.S.C. § 634(e)(2). Only when these three criteria are met is the business entitled to deferment, and even then at the discretion of the SBA. Thus, we do not believe that the SBA is left to its unguided inclinations in deciding when deferral is proper. Finally, the district court was concerned that the deferral program in the instant case was implemented in an ad hoc manner, without any evaluation of Hart Trust’s situation. The facts of this case belie such a contention. In January 1979 Hart Trust requested a 90-day extension for making the January 1979 payment. This request was granted, and even then payment was not made until November. In April 1980 Hart Trust requested a deferral for the second payment that was due in January 1980. This payment was deferred until July 1980. Hart Trust then requested a deferral until November 1980, which was also granted. This payment, however, was never made. In May 1981 the SBA sent Hart Trust a collection letter requesting that the loan be brought up to date or that other arrangements be made. In June 1981 the SBA demanded payment of the loan. Hart Trust responded in July 1981, requesting that the SBA delay taking any action pending its obtaining another loan that would be used to pay the SBA. Still, no payment was made. In December 1981 the SBA made another demand for payment; payment was not made. In April 1982 the SBA contacted a representative of Hart Trust regarding the loan and agreed to delay taking any liquidation action after being assured that payment would soon be made. It was not. Finally, after being in default over two years, on May 10, 1982, the SBA accelerated the loan. The Hart’s property securing the loan was sold on September 7,1982. Then, in November 1982 the SBA wrote the Hart’s demanding payment of the balance of the loan that was not satisfied by the sale of the property. In this letter, the SBA still offered to accommodate the Hart’s if they were still having financial difficulties. These facts illustrate that the SBA did not administer Hart Trust’s loan in an ad hoc manner without any evaluation of its financial situation. On the contrary, the SBA was patient and accommodating, and it complied with its rules and regulations. The SBA gave Hart Trust more than an adequate opportunity to try to work out a repayment plan. We find no merit to this claim. IV. The SBA next contends that the district court erred in giving probative value to the terms of the settlement agreement adopted in Stone. We believe that the SBA has incorrectly interpreted the court’s discussion of Stone. We do not think that the court relied on Stone for its holding; rather, the court merely noted that the “SBA has already implemented a program in Georgia pursuant to a settlement entered in the case of Stone v. Cardenas... which would go a long way towards satisfying the procedural defects noted by the Court in this opinion.” (footnote omitted). We do not read this statement as one indicating a reliance by the court on Stone for its holding. Instead, the court is merely suggesting a solution to the problems it identified. Therefore, we do not address the SBA’s argument of whether the district court erred in giving probative value to Stone. Instead, we dismiss the discussion relating to Stone as dicta. V. The SBA’s final argument is that the district court erred in not granting summary judgment in its favor, holding that it was entitled to a deficiency judgment. We agree. In this case, both parties agreed to submit the case for summary resolution based on the stipulated facts and trial briefs. Since we hold that the district court erred in granting summary judgment in favor of Hart Trust, judgment must now be entered in favor of the SBA. VI. For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case to the court to enter judgment in favor of the SBA. APPENDIX UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRUCE EDWARD PARR and GRACE M. PARR, Defendants-Appellants. No. 85-1424 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. June 24, 1986 Appeal from the United States District Court for the Northern District of Texas Before CLARK, Chief Judge, JOLLY and HILL, Circuit Judges. E. GRADY JOLLY, Circuit Judge: In 1978 and 1979, Bruce and Grace Parr (the Parrs) borrowed money from the United States through the Small Business Association (SBA) Disaster Loan Program. Although the SBA deferred repayment of these loans several times, the Parrs were unable to tender their required payments. In April 1982, the SBA accelerated the notes and in March 1983 brought this action against the Parrs to recover the amounts due. The Parrs, acknowledging their indebtedness, asserted three affirmative defenses. Prior to trial, the district court struck two of these defenses and allowed the case to proceed to trial before a jury on the remaining defense. At the close of all evidence, the district court granted the United States’ motion for directed verdict and entered judgment for the United States. On appeal, we are asked to determine whether the district court erred either by striking the two affirmative defenses or by granting the directed verdict for the United States. As we find no error, we affirm. I. A. The Parrs have been farmers in Frio County, Texas for over forty-four years. After suffering substantial financial losses, the Parrs, upon the recommendation of a local banker, investigated the possibility of obtaining loans from the SBA Disaster Loan Program. According to the Parrs, SBA officials advised them that the Disaster Loan Program was not a “one shot” situation, but rather that the SBA would continue to lend operating funds in the future. The Parrs also contend that the SBA officials represented that payments due during disaster years would be deferred or restructured and that repayment of the loan would be conditioned upon normal production. Based on these representations, on December 15, 1978, the Parrs borrowed $189,-000 at three percent interest from the SBA. The loan was evidenced by a promissory note which stated that the first payment was due on April 1, 1980. The Parrs continued to suffer financial stress and thus on May 17, 1979, borrowed an additional $195,000 at three percent interest from the SBA. This debt, also evidenced by a promissory note, required the first payment to be tendered on February 1,1980. On January 24, 1980, the SBA deferred payment on the loan until August 1, 1980. Meanwhile, the April 1 repayment date on the first loan was quickly approaching and the Parrs were still in financial straits. Unable to make the loan payments from the proceeds of their farm production, the Parrs applied for yet another loan and the SBA agreed to defer payment until October 1, 1980. Both the August 1, 1980 repayment date for the second loan and the October 1, 1980 repayment date for the first loan passed without payments by the Parrs. On October 21, 1980, the SBA notified the Parrs that they had been allowed duplicated benefits and demanded repayment of $13,809; the SBA also reminded the Parrs that payments on both loans were past due. On November 6, 1980, the Parrs repaid the $13,809, but did not tender any payments due on either loan. On November 25 and December 5, the SBA wrote the Parrs that repayment on the first loan was again being deferred, this time to April 1, 1981. The SBA notified the Parrs, however, that both loans were seriously delinquent. The Parrs still did not tender payment on the second loan, even though the date for the second payment on this loan, February 1, 1981, was approaching. Without ever having received the first payment which was due on August 1, 1980, the SBA deferred the second payment from February to August 1981. The April 1, 1981 repayment date for the first loan passed without any repayment. On May 13, the SBA deferred for the third time the first payment on the first loan to July 1, 1981. When this date passed without payment, the SBA wrote to the Parrs, requesting payments on August 12, August 25, September 4, and October 1, 1981. In addition, the August 1, 1981 repayment date for the second note also passed without payment. On October 21, the SBA wrote the Parrs about these overdue payments, and on November 19, notified the Parrs that both debts were being accelerated. Acceleration letters were sent again on April 1, 1982. Except for the repayment of $13,809 to return duplicate benefits, the Parrs failed to tender a single repayment under either loan. B. On March 7, 1983, the United States, on behalf of the SBA, brought suit against the Parrs, seeking to recover the amounts due on both loans. The procedural aspects of this action, extending over more than two years, are complex and not relevant to the outcome of this appeal. From the important thrusts and parries, we note that the Parrs admitted executing both promissory notes and receiving demands for payment, but contended that the terms of the contract included representations made to them by SBA officials at the time these loans were negotiated, and that the United States was in default on these additional contract terms which caused the Parrs to sustain monetary damages that more than offset the amount owing to the SBA. Thus, to offset the United States’ prima facie case, and as recoupment for the Parrs’ loss, the Parrs, in the second amended pretrial order, asserted the following three affirmative defenses: 1. Defendant asserts that he suffered crop disasters in 1977, 1978, 1979 and 1980. He obtained loans for the first two disasters and processed application for the third and fourth. The third application was granted and funding was refused by local SBA officials. Defendant contends that this action caused his default and is an offset in law and equity. 2. Defendants assert that the Plaintiff is estopped from liquidating, accelerating or otherwise attempting to foreclose without first giving defendants notice and opportunity to request deferral in accord with Title 13 C.F.R. and that such action by plaintiff would violate defendants’ constitutional right to due process under the Fifth Amendment. 3. Defendants assert that Plaintiff is in material breach of the contract between the parties and that the defendants are not obligated to further performances under the contract. On April 19, 1985, the United States moved to strike these defenses under Federal Rule of Civil Procedure 12(f). On May 7, 1985, the district court partially granted the United States’ motion to strike, leaving the Parrs with only their third affirmative defense. The court also granted the United States’ motion in limine, preventing the Parrs from introducing evidence or testimony regarding rejected loan applications filed by the Parrs with the SBA after the first and second loans were executed. A jury trial began on May 7, focusing primarily on the Parrs’ assertion that the United States was in material breach on the contract between the parties. The United States established its prima facie case of the Parrs’ indebtedness on the 1978 and 1979 loans and rested its case. The Parrs then offered testimony by seven witnesses to show that additional representations, not apparent on the face of the written agreement, were made to the Parrs and that these representations were material terms of the loan agreement. After the Parrs rested their case, the United States offered no rebuttal evidence. After arguments by the parties, the district court granted the United States’ motion for a directed verdict, and ordered that the United States recover from the Parrs $437,-478.14, plus interest. The Parrs filed a timely notice of appeal. II. A. The Parrs raise two issues on appeal. First, the Parrs contend that the district court erred as a matter of law in striking their first two affirmative defenses. Second, the Parrs argue that the district court erred in granting the United States’ motion for a directed verdict. B. The Parrs assert two reasons why it was error for the district court to strike two of their affirmative defenses before trial. First, the Parrs contend that the United States’ motion to strike was untimely as it was filed more than twenty days after the Parrs’ pleading was served on the government. See Fed.Rule of Civ.Pro. 12(f). While the Parrs accurately assess the time periods involved, we note that they did not raise this issue to the district court when responding to the United States’ motion to strike. Since issues not raised below will generally not be considered on appeal, we decline to reverse the motion to strike on this ground. The Parrs’ second contention is that the district court erred in finding the affirmative defenses insufficient as a matter of law. The first defense asserts that the Parrs defaulted on their loans because applications for a third and fourth loan were denied. Clearly, this defense is legally insufficient because a decision not to extend further credit does not offset an already existing obligation, unless the creditor has an obligation to lend additional funds. The Parrs’ contention that the United States did have such an obligation is the sole basis of the third affirmative defense. See infra p. 1250. Since the first and third defenses, when examined, are overlapping, the district court’s decision to strike the first defense was not an abuse of discretion. The second affirmative defense contends that the United States is estopped from accelerating debts on the loans without first giving the Parrs notice and an opportunity to request deferrals. We find this defense difficult to understand. First, the Supreme Court has held that people are charged with knowledge of the contents of federal regulations, just as they are charged with knowledge of statutory law. See Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Thus, officers of the United States were not responsible for informing the Parrs of any right to loan deferrals before acceleration. Second, even if the United States did have an obligation to inform the Parrs of the availability of deferrals, the Parrs were so informed. In fact, the Parrs received three deferrals on the first loan and two deferrals on the second. Since the Parrs had actual notice of their right to receive deferrals, any claim for not being informed of this right is moot. Thus, the district court properly granted the motion to strike the Parrs’ second affirmative defense. C. The Parrs’ second contention on appeal is that the district court erred as a matter of law when it granted the United States’ motion for a directed verdict. The Parrs’ claim seems to be that the contract between the Parrs and the SBA included assurances that the SBA would not require any payments on the loans during disaster years and that the SBA breached this agreement. As a result of this alleged breach, the Parrs assert, they have a valid set-off against the SBA’s prima facie case. We disagree. We do not decide what representations, if any, were made to the Parrs because, even if the asserted representations were made, they do not become terms of the loan agreement between the SBA and the Parrs. “Regardless of the strong moral implications, it is well established that the Government is not bound by the unauthorized or incorrect statements of its agents.” Posey v. United States, 449 F.2d 228, 234 (5th Cir.1971). Accord United States v. R & D One Stop Records, Inc., 661 F.2d 433, 434-35 (5th Cir.1981). Since no terms could have been added to the written promissory notes beyond those authorized by federal regulation, and since the SBA complied with its own regulations, any unauthorized or incorrect representation made to the Parrs did not become terms of the loan agreement. Thus, the district court properly granted the United States’ motion for directed verdict because, as a matter of law, the Parrs had no defense to the government’s complaint. III. We find that the district court did not err in striking two of the Parrs’ affirmative defenses to the United States’ prima facie case. Since there was no error in granting the directed verdict in favor of the United States, the judgment of the district court is AFFIRMED. . The court noted in conclusion that the SBA had already implemented a program in Georgia pursuant to a settlement entered in Stone v. Cardenas, Civil Action No. CV 281-122 (S.D.Ga. 1982), that would go a long way towards satisfying the procedural defects it had found. The Parr opinion is reprinted in full in the appendix to this opinion. . Hart Trust also seems to contend that a true deferral entails a period when interest does not accrue on the amount due and payable. Since it only received postponement periods during which interest continued to accrue, it did not receive a true deferral. We also find no statutory or regulatory basis for this distinction and decline to adopt it. . We do recommend, as the district court also does, that the SBA implement procedures similar to those established in Stone v. Cardenas, Civil Action No. CV 281-122 (S.D. Georgia 1982). First, such procedures will benefit both the Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

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